STATCON

MODULE 1: LEGISLATIVE POWER

I. Legislative Power in General, Where Lodged

1. David v. Arroyo, G.R. No. 171396 May 3, 2006

NWEALTH ACT NO. 638

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L.

ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL
REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF
NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF,
PHILIPPINE NATIONAL POLICE, Respondents.

x————————————-x

G.R. No. 171409             May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO, Respondents.

x————————————-x

G.R. No. 171485             May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO,

AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC
SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P.
ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA,
FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY,
DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF
STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.

x————————————-x

G.R. No. 171483             May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND

SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR
UNIONS – KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL
PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA,
EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE
EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO, Respondents.

x————————————-x

G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO,Respondents.

G.R. No. 171489             May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR

M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P.
LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN
HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.

x————————————-x

G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-
GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS
CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES (AFP);
AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior
strength—the use of force—cannot make wrongs into rights. In this regard, the courts should be vigilant
in safeguarding the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: “ In cases
involving liberty, the scales of justice should weigh heavily against government and in favor of the
poor, the oppressed, the marginalized, the dispossessed and the weak.” Laws and actions that restrict
fundamental rights come to the courts “with a heavy presumption against their constitutional validity.” 2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-
Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve democratic institutions, are actually
trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are
void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the
Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the
degree of law, without which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,
President Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,” and in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
to all decrees, orders and regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists—the historical enemies of the democratic Philippine State—
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;
WHEREAS, this series of actions is hurting the Philippine State—by obstructing governance
including hindering the growth of the economy and sabotaging the people’s confidence in
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists – the historical enemies of the democratic Philippine State—and who are now in
a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring
down the duly-constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including
hindering the growth of the economy and sabotaging the people’s confidence in the government and their
faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the
opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects
constitute a clear and present danger to the safety and the integrity of the Philippine State and of the
Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me
under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the
Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby
call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent
and suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of
the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to
suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all
these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which
reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on
the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate
cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents
of the New People’s Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.4 They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the
issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full  discretionary powers to the
President in determining the necessity of calling out the armed forces. He emphasized that none of the
petitioners has shown that PP 1017 was without factual bases. While he explained that it is not
respondents’ task to state the facts behind the questioned Proclamation, however, they are presenting the
same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San
Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped
their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant
and to elude arrest at all costs. They called upon the people to “show and proclaim our displeasure at the
sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms.” 5

On February 17, 2006, the authorities got hold of a document entitled “Oplan Hackle I ” which detailed
plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio
City. The plot was to assassinate selected targets including some cabinet members and President Arroyo
herself. 6 Upon the advice of her security, President Arroyo decided not to attend the Alumni
Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA
parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province.
Found in his possession were two (2) flash disks containing minutes of the meetings between members of
the Magdalo Group and the National People’s Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.  7 Prior to his arrest, Lt. San Juan announced through
DZRH that the “Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.”

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP-
Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General
Marcelino Franco, Jr. to “disavow” any defection. The latter promptly obeyed and issued a public
statement: “All SAF units are under the effective control of responsible and trustworthy officers with
proven integrity and unquestionable loyalty.“

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s
brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo
administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic,
called a U.S. government official about his group’s plans if President Arroyo is ousted. Saycon also
phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the
Army’s elite Scout Ranger. Lim said “it was all systems go for the planned movement against Arroyo.“8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga,
Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join
the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on
February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the
soldiers because they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and
the police establishments in order to forge alliances with its members and key officials. NPA spokesman
Gregorio “Ka Roger” Rosal declared: “The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its immediate task of bringing
down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to
end it.”9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central
Mindanao, publicly announced: “Anti-Arroyo groups within the military and police are growing rapidly,
hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field.” He claimed that with the forces of the national
democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s ouster is nearing its concluding stage
in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and
Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is
the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive
of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests. 10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet
members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and
the PNP to account for all their men and ensure that the chain of command remains solid and undivided.
To protect the young students from any possible trouble that might break loose on the streets, the
President suspended classes in all levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No.
5.

Immediately, the Office of the President announced the cancellation of all programs and activities related
to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued
earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the
President’s mind were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that “warrantless arrests and take-over of facilities, including media, can
already be implemented.”11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of
protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang
Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of
converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by
huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields,
water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants.
The same police action was used against the protesters marching forward to Cubao, Quezon City and to
the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an
EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. 12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of
their assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S.
David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his
companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and
Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the  Daily
Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures,
and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside
the editorial and business offices of the newspaper; while policemen from the Manila Police District were
stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is “meant to show a ‘strong
presence,’ to tell media outlets not to connive or do anything that would help the rebels in bringing down
this government.” The PNP warned that it would take over any media organization that would not
follow “standards set by the government during the state of national emergency.” Director General
Lomibao stated that “if they do not follow the standards—and the standards are—if they would
contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5
and Proc. No. 1017—we will recommend a ‘takeover.’” National Telecommunications’ Commissioner
Ronald Solis urged television and radio networks to “cooperate” with the government for the duration of
the state of national emergency. He asked for “balanced reporting” from broadcasters when covering the
events surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage
when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that the
warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be
admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest
were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public
forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into
custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while
with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael

Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan
Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives where the “Batasan 5” decided to stay
indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur
Ocampo, et al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has
ceased to exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were
filed with this Court against the above-named respondents. Three (3) of these petitions impleaded
President Arroyo as respondent.
InG.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it
encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional
requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom
of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.challenged the
CIDG’s act of raiding the Daily Tribune offices as a clear case of “censorship” or “prior restraint.” They
also claimed that the term “emergency” refers only to tsunami, typhoon, hurricane and similar
occurrences, hence, there is “absolutely no emergency” that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one
(21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael
Mariano, Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5
constitute “usurpation of legislative powers“; “violation of freedom of expression” and “a declaration of
martial law.” They alleged that President Arroyo “gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that
there is necessity to do so.“

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O.
No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and
decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the
right of the people to peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No.
5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of
Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an “arbitrary and
unlawful exercise by the President of her Martial Law powers.” And assuming that PP 1017 is not really a
declaration of Martial Law, petitioners argued that “it amounts to an exercise by the President of
emergency powers without congressional approval.” In addition, petitioners asserted that PP 1017 “goes
beyond the nature and function of a proclamation as defined under the Revised Administrative Code.”

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are
“unconstitutional for being violative of the freedom of expression, including its cognate rights such as
freedom of the press and the right to access to information on matters of public concern, all guaranteed
under Article III, Section 4 of the 1987 Constitution.” In this regard, she stated that these issuances
prevented her from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be
dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483
(KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional
and legal basis; and fifth, PP 1017 does not violate the people’s right to free expression and redress of
grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking
issues which may be summarized as follows:
A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et

al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review
enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation—

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political
authority. It confers limited powers on the national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will
of the people as expressed in the Constitution. This power the courts exercise. This is the beginning
and the end of the theory of judicial review.22

But the power of judicial review does not repose upon the courts a “self-starting capacity.” 23 Courts may
exercise such power only when the following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional
question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself. 24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion
thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of
judicial resolution. It is “definite and concrete, touching the legal relations of parties having adverse legal
interest;” a real and substantial controversy admitting of specific relief. 25 The Solicitor General refutes the
existence of such actual case or controversy, contending that the present petitions were rendered “moot
and academic” by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events,26 so that a declaration thereon would be of no practical use or value. 27 Generally, courts decline
jurisdiction over such case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot
and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts?These are the vital issues that must be resolved in the
present petitions. It must be stressed that “an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation, inoperative.”30

The “moot and academic” principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution;31second, the exceptional character of the situation and the paramount public
interest is involved;32 third, when constitutional issue raised requires formulation of controlling principles
to guide the bench, the bar, and the public; 33 and fourth, the case is capable of repetition yet evading
review.34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the
instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution.
There is no question that the issues being raised affect the public’s interest, involving as they do the
people’s basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the
duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and the police, on
the extent of the protection given by constitutional guarantees. 35 And lastly, respondents’ contested
actions are capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into
account the Chief Justice’s very statement that an otherwise “moot” case may still be decided “provided
the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct
result of its issuance.” The present case falls right within this exception to the mootness rule pointed out
by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have
a more than passing discussion on legal standing or locus standi.

Locus standi is defined as “a right of appearance in a court of justice on a given question.” 37 In private
suits, standing is governed by the “real-parties-in interest” rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that “every action must be prosecuted or
defended in the name of the real party in interest.” Accordingly, the “real-party-in interest” is “the
party who stands to be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.“38 Succinctly put, the plaintiff’s standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public
right” in assailing an allegedly illegal official action, does so as a representative of the general public. He
may be a person who is affected no differently from any other person. He could be suing as a “stranger,”
or in the category of a “citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is entitled
to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a “citizen” or “taxpayer.

Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in public actions. The
distinction was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s
suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected
by the expenditure of public funds, while in the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People ex rel Case v. Collins:40 “In matter of mere
public right, however…the people are the real parties…It is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly pursued and punished, and that
a public grievance be remedied.” With respect to taxpayer’s suits, Terr v. Jordan41 held that “the right
of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied.“

However, to prevent just about any person from seeking judicial interference in any official policy or act
with which he disagreed with, and thus hinders the activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the more stringent “direct injury” test in Ex Parte
Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled that for a private individual to
invoke the judicial power to determine the validity of an executive or legislative action, he must show
that he has sustained a direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.

This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera,44 it held that the person
who impugns the validity of a statute must have “a personal and substantial interest in the case such
that he has sustained, or will sustain direct injury as a result.” The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate,45Manila Race Horse Trainers’ Association v.
De la Fuente,46Pascual v. Secretary of Public Works 47 and Anti-Chinese League of the Philippines v.
Felix.48

However, being a mere procedural technicality, the requirement of locus standi may be waived by the
Court in the exercise of its discretion. This was done in the 1949 Emergency Powers Cases,Araneta v.
Dinglasan,49 where the “transcendental importance” of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass
upon the issues raised due to the “far-reaching implications” of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens, members of Congress, and
civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they
have been allowed to sue under the principle of “transcendental importance.” Pertinent are the
following cases:

(1)Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus standi;
(2)Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that “given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the suit
to prosper despite the lack of direct injury to the parties seeking judicial review”  of the Visiting
Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that “Balikatan 02-01” involves the exercise of Congress’ taxing
or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of
transcendental importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization
does not give it the requisite personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any
allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege
any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated
the “direct injury” test with respect to concerned citizens’ cases involving constitutional issues. It held
that “there must be a showing that the citizen personally suffered some actual or threatened injury arising
from the alleged illegal official act.”

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP),
is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or
supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the President’s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress, thus impairing their legislative powers . As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The
same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc.
They alleged “direct injury” resulting from “illegal arrest” and “unlawful search” committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers.
They also raised the issue of whether or not the concurrence of Congress is necessary whenever the
alarming powers incident to Martial Law are used. Moreover, it is in the interest of justice that those
affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the
alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60Kapatiran
Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to
assert the rights of their members.65 We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies following the issuance of PP
1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the
Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the
IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O.
No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere invocation by the
IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by other groups and the
whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that
petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there
are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no
consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not
likewise aid her because there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the
proceedings or result of her case. But considering once more the transcendental importance of the issue
involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of
proper exercise of judicial power. This is the underlying legal tenet of the “liberality doctrine” on legal
standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question
which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of
Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The
petitions thus call for the application of the “transcendental importance” doctrine, a relaxation of the
standing requirements for the petitioners in the “PP 1017 cases.”

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal
case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court litigations while serving as
such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction
to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative
and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness
in the discharge of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people 68 but he may be
removed from office only in the mode provided by law and that is by impeachment. 69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not “necessary” for President Arroyo
to issue such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his
Commander-in-Chief power has reached its distilled point—from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72Aquino, Jr. v.
Enrile,73 and Garcia-Padilla v. Enrile. 74 The tug-of-war always cuts across the line defining “political
questions,” particularly those questions “in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government.” 75Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of
the Court were unanimous in the conviction that the Court has the authority to inquire into the existence
of factual bases in order to determine their constitutional sufficiency. From the principle of separation
of powers, it shifted the focus to the system of checks and balances, “under which the President is
supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the Judicial Department, which
in this respect, is, in turn, constitutionally supreme.“76 In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of whether the
validity of the imposition of Martial Law is a political or justiciable question. 78 Then came Garcia-
Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter
case, ratiocinating that “in times of war or national emergency, the President must be given absolute
control for the very life of the nation and the government is in great peril. The President, it intoned,
is answerable only to his conscience, the People, and God.”79

The Integrated Bar of the Philippines v. Zamora 80—a recent case most pertinent to these cases at bar—
echoed a principle similar to Lansang. While the Court considered the President’s “calling-out” power as
a discretionary power solely vested in his wisdom, it stressed that “this does not prevent an
examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion.”This ruling is mainly a
result of the Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority
of the courts to determine in an appropriate action the validity of the acts of the political departments.
Under the new definition of judicial power, the courts are authorized not only “to settle actual
controversies involving rights which are legally demandable and enforceable,” but also “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 the government.” The latter part of the
authority represents a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the government. 81 It
speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that
“judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct,”
but that “the President did not act arbitrarily.” Thus, the standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that “it is incumbent upon
the petitioner to show that the President’s decision is totally bereft of factual basis” and that if he
fails, by way of proof, to support his assertion, then “this Court cannot undertake an independent
investigation beyond the pleadings.”

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017,
is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and
Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their
audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine
Marines, and the reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military
aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her
arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion.
However, the exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency

This case brings to fore a contentious subject—the power of the President in times of emergency. A
glimpse at the various political theories relating to this subject provides an adequate backdrop for our
ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of
prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted
by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative “power to act according to
discretion for the public good, without the proscription of the law and sometimes even against
it.”84 But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting that “the people have no other remedy in
this, as in all other cases where they have no judge on earth, but to appeal to Heaven.”85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
government in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in
certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the
State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend
their operation. Even Sparta allowed its law to lapse…

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the
method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the
sovereign authority. In such a case, there is no doubt about the general will, and it clear that the people’s
first intention is that the State shall not perish. 86

Rosseau did not fear the abuse of the emergency dictatorship or “supreme magistracy” as he termed it.
For him, it would more likely be cheapened by “indiscreet use.” He was unwilling to rely upon an
“appeal to heaven.” Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.87

John Stuart Mill concluded his ardent defense of representative government: “I am far from
condemning, in cases of extreme necessity, the assumption of absolute power in the form of a
temporary dictatorship.”88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited
government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and
attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra-constitutional measures; for
although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once
established for good objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a
remedy for every emergency and fixed rules for applying it. 89

Machiavelli—in contrast to Locke, Rosseau and Mill—sought to incorporate into the constitution a
regularized system of standby emergency powers to be invoked with suitable checks and controls in time
of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of
power and speed and vigor in its application in time of emergency, with effective constitutional
restraints.90

Contemporary political theorists, addressing themselves to the problem of response to emergency by

constitutional democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick M.
Watkins saw “no reason why absolutism should not be used as a means for the defense of liberal
institutions,” provided it “serves to protect established institutions from the danger of permanent
injury in a period of temporary emergency and is followed by a prompt return to the previous
forms of political life.”92 He recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing administrative powers of the
executive, while at the same time”imposing limitation upon that power.”93 Watkins placed his real
faith in a scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: “The period of dictatorship must be relatively short…Dictatorship should always be
strictly legitimate in character…Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself…”94 and the objective of such an emergency dictatorship
should be “strict political conservatism.”

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 “It is a problem of concentrating
power—in a government where power has consciously been divided—to cope with… situations of
unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how long, and to what end.” 96 Friedrich, too,
offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: “The emergency
executive must be appointed by constitutional means—i.e., he must be legitimate; he should not
enjoy power to determine the existence of an emergency; emergency powers should be exercised
under a strict time limitation; and last, the objective of emergency action must be the defense of the
constitutional order.”97

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain,
France, Weimar, Germany and the United States, reverted to a description of a scheme of “constitutional
dictatorship” as solution to the vexing problems presented by emergency.  98 Like Watkins and Friedrich,
he stated a priori the conditions of success of the “constitutional dictatorship,” thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State and its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men
who will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination…

4) …all uses of emergency powers and all readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more
than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent
in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the citizenry interested
in the defense of the existing constitutional order. . .

8.) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship.
..

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be
in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship… 99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an
emergency, and he places great faith in the effectiveness of congressional investigating committees. 100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in
saying that, “the suggestion that democracies surrender the control of government to an
authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional
theory.” To appraise emergency power in terms of constitutional dictatorship serves merely to distort the
problem and hinder realistic analysis. It matters not whether the term “dictator” is used in its normal sense
(as applied to authoritarian rulers) or is employed to embrace all chief executives administering
emergency powers. However used, “constitutional dictatorship” cannot be divorced from the implication
of suspension of the processes of constitutionalism. Thus, they favored instead the “concept of
constitutionalism” articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers,
and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While
it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers
of government, full emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was
the existence of adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but rather in the limiting of it;
between which there is a great and very significant difference. In associating constitutionalism with
“limited” as distinguished from “weak” government, McIlwain meant government limited to the
orderly procedure of law as opposed to the processes of force. The two fundamental correlative
elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists—from Lock’s
“theory of prerogative,” to Watkins’ doctrine of “constitutional dictatorship” and, eventually, to
McIlwain’s “principle of constitutionalism”—ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive,
while insuring that such powers will be exercised with a sense of political responsibility and under
effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the
1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in
the concept of Justice Jackson’s “balanced power structure.” 102 Executive, legislative, and judicial powers
are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within
its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a
role to serve as limitation or check upon the other. This system does not weaken the President, it
just limits his power, using the language of McIlwain. In other words, in times of emergency, our
Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and
wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations.

a. “Facial Challenge”

Petitioners contend that PP 1017 is void on its face because of its “overbreadth.” They claim that its
enforcement encroached on both unprotected and protected rights under Section 4, Article III of the
Constitution and sent a “chilling effect” to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing “on their faces”
statutes in free speech cases, also known under the American Law as First Amendment cases. 103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related
conduct. It is actually a call upon the AFP to prevent or suppress all forms of  lawlessviolence. In United
States v. Salerno,104 the US Supreme Court held that “we have not recognized an ‘overbreadth’
doctrine outside the limited context of the First Amendment” (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that “reflects
legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected
conduct.” Undoubtedly, lawless violence, insurrection and rebellion are considered “harmful” and
“constitutionally unprotected conduct.” In Broadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face
and when ‘such summary action’ is inappropriate. But the plain import of our cases is, at the very
least, that facial overbreadth adjudication is an exception to our traditional rules of practice and
that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it
forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct—even if
expressive—falls within the scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful, constitutionally unprotected
conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek
to regulate only “spoken words” and again, that “overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct.”106 Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not
free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as “manifestly strong medicine,” to be used “sparingly

and only as a last resort,” and is “generally disfavored;”107 The reason for this is obvious. Embedded in
the traditional rules governing constitutional adjudication is the principle that a person to whom a law
may be applied will not be heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. 108 A writer and scholar in
Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of
the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute “on its face,” not merely “as
applied for” so that the overbroad law becomes unenforceable until a properly authorized court construes
it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the “chilling;” deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s “very existence may cause others not
before the court to refrain from constitutionally protected speech or expression.” An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP
1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes,…ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish that there can be no instance when the assailed law
may be valid. Here, petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is
unwarranted.

Related to the “overbreadth” doctrine is the “void for vagueness doctrine” which holds that “ a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to
its application.“110 It is subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing “on their faces” statutes in free speech cases. And like overbreadth, it is
said that a litigant may challenge a statute on its face only if it is vague in all its possible applications.
Again, petitioners did not even attempt to show that PP 1017 is vague in all its application.  They
also failed to establish that men of common intelligence cannot understand the meaning and application
of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

“by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all
forms of lawless violence as well any act of insurrection or rebellion”
Second provision:

“and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction;”

Third provision:

“as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency.”

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive
Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual bases 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
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege
of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a “sequence” of graduated powers. From the most to the
least benign, these are: the calling-out power, the power to suspend the privilege of the writ of  habeas
corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the
Court ruled that the only criterion for the exercise of the calling-out power is that “whenever it becomes
necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion
or rebellion.” Are these conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her
Office’s vast intelligence network, she is in the best position to determine the actual condition of the
country.

Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act
that goes beyond the President’s calling-out power is considered illegal or ultra vires. For this reason, a
President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes
to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater
are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to declare a
“state of rebellion” (in Sanlakas) and the authority to proclaim a state of national emergency. While
President Arroyo’s authority to declare a “state of rebellion” emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised
Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.

President Arroyo’s declaration of a “state of rebellion” was merely an act declaring a status or condition
of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the
words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on
Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s
extraordinary power to take over privately-owned public utility and business affected with public interest.
Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be
deemed harmless, without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is
no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President
invoked was her calling-out power.

The declaration of Martial Law is a “warn[ing] to citizens that the military power has been called upon by
the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment, not commit any acts which will in any way render more
difficult the restoration of order and the enforcement of law.” 113

In his “Statement before the Senate Committee on Justice” on March 13, 2006, Mr. Justice Vicente V.
Mendoza,114 an authority in constitutional law, said that of the three powers of the President as
Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is
a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of
the government. It is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section
18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of
the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts
and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege
of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by
the President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to
justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is
a perversion of its nature and scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban
on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as Commander-in-
Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law.  It is merely
an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.

Second Provision: “Take Care” Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed.
This is based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices.  He shall
ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested, 115 the primary function of the President is to
enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all
laws are enforced by the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the Philippines, he will, among
others, “execute its laws.” 116 In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of Interior and Local
Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano,
Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the clause “to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction.”

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was
lifted120 from Former President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the

powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause
states: “to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.” Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.”

Is it within the domain of President Arroyo to promulgate “decrees“?

PP 1017 states in part: “to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction.“

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character
in implementation or execution of constitutional or statutory powers shall be promulgated in executive
orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public
moment or interest, upon the existence of which the operation of a specific law or regulation is made to
depend, shall be promulgated in proclamations which shall have the force of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of

subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration,
which the President desires to bring to the attention of all or some of the departments, agencies, bureaus
or offices of the Government, for information or compliance, shall be embodied in memorandum
circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees
are laws which are of the same category and binding force as statutes because they were issued by the
President in the exercise of his legislative power during the period of Martial Law under the 1973
Constitution.121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo
the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives.” To be
sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s
exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be enforced. With respect to “laws,” she cannot call the military to
enforce or implement certain laws, such as customs laws, laws governing family and property relations,
laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce
laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by
me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do
hereby declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP
1017, can call the military not only to enforce obedience “to all the laws and to all decrees x x x” but also
to act pursuant to the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, duxqring the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant
the President, without any authority or delegation from Congress, to take over or direct the operation of
any privately-owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the “martial law” thinking of
the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos’ Letter
of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over
“the management, control and operation of the Manila Electric Company, the Philippine Long Distance
Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful
prosecution by the Government of its effort to contain, solve and end the present national emergency.“

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s
inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency
powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare “a state of national emergency”
and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants
the President such power, hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting
separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for
a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to
“other national emergency.” If the intention of the Framers of our Constitution was to withhold from the
President the authority to declare a “state of national emergency” pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then
the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the
President before he can declare a “state of national emergency.” The logical conclusion then is that
President Arroyo could validly declare the existence of a state of national emergency even in the absence
of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or
business affected with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together.
Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same
subject matter will be construed together and considered in the light of each other. 123 Considering
thatSection 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23
(2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate
a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible
or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it
wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over
of private business affected with public interest is just another facet of the emergency powers generally
reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency
and under reasonable terms prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest,” it refers to Congress, not the
President. Now, whether or not the President may exercise such power is dependent on whether Congress
may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet &
Tube Co. et al. v. Sawyer,125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision
of the Constitution. And it is not claimed that express constitutional language grants this power to the
President. The contention is that presidential power should be implied from the aggregate of his powers
under the Constitution. Particular reliance is placed on provisions in Article II which say that “The
executive Power shall be vested in a President . . . .;” that “he shall take Care that the Laws be faithfully
executed;” and that he “shall be Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as Commander-
in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding
broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need
not concern us here. Even though “theater of war” be an expanding concept, we cannot with
faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces
has the ultimate power as such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nation’s lawmakers, not for its military
authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the President’s power to
see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.The
Constitution limits his functions in the lawmaking process to the recommending of laws he thinks
wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The first section of the first article
says that “All legislative Powers herein granted shall be vested in a Congress of the United
States. . .”126

Petitioner Cacho-Olivares, et al. contends that the term “emergency” under Section 17, Article XII refers
to “tsunami,” “typhoon,” “hurricane” and “similar occurrences.”This is a limited view of
“emergency.”

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of
existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions
are the elements of intensity, variety, and perception. 127 Emergencies, as perceived by legislature or
executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable
under three (3) principal heads: a)economic,128b)natural disaster,129 and c)national security.130

“Emergency,” as contemplated in our Constitution, is of the same breadth. It may include rebellion,
economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide
proportions or effect.131 This is evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of “national emergency” which appears in
Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural

disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term “national emergency.”

MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.132

xxxxxx

MR. TINGSON. May I ask the committee if “national emergency” refers to military national
emergency or could this be economic emergency?”

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the power to take over privately-owned public utility or
business affected with public interest.

In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary
measures are exercised, remains in Congress even in times of crisis.

“x x x

After all the criticisms that have been made against the efficiency of the system of the separation of
powers, the fact remains that the Constitution has set up this form of government, with all its defects and
shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino
people by adopting parliamentary government have given notice that they share the faith of other
democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this
framework of government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws
been surrendered to another department—unless we regard as legislating the carrying out of a legislative
policy according to prescribed standards; no, not even when that Republic was fighting a total war, or
when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our
concept of constitutional government, in times of extreme perils more than in normal circumstances ‘the
various branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform
the duties and discharge the responsibilities committed to them respectively.”

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017,
this Court rules that such Proclamation does not authorize her during the emergency to temporarily take
over or direct the operation of any privately owned public utility or business affected with public interest
without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however,
without legislation, he has no power to take over privately-owned public utility or business affected with
public interest. The President cannot decide whether exceptional circumstances exist warranting the take
over of privately-owned public utility or business affected with public interest. Nor can he determine
when such exceptional circumstances have ceased. Likewise, without legislation, the President has no
power to point out the types of businesses affected with public interest that should be taken over. In short,
the President has no absolute authority to exercise all the powers of the State under Section 17, Article
VII in the absence of an emergency powers act passed by Congress.

c. “AS APPLIED CHALLENGE”

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military
necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in
the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate “direct injury.”

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested
without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The
arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives “raided and ransacked without warrant” their office. Three
policemen were assigned to guard their office as a possible “source of destabilization.” Again, the basis
was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were
“turned away and dispersed” when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th
Anniversary of People Power I.

A perusal of the “direct injuries” allegedly suffered by the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In
general, does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid  although they may be abused
and misabused135 and may afford an opportunity for abuse in the manner of application.136 The
validity of a statute or ordinance is to be determined from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a particular case.137 PP 1017 is merely an invocation
of the President’s calling-out power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President
Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to
conduct illegal arrest, search or violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor
committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is
to be measured is the essential basis for the exercise of power, and not a mere incidental result arising
from its exertion.138 This is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If this were so,
judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the
provisions of the Revised Penal Code would have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are
“acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines.” They are internal rules issued by the executive officer to his subordinates precisely for
the proper and efficient administration of law. Such rules and regulations create no relation except
between the official who issues them and the official who receives them. 139 They are based on and are the
product of, a relationship in which power is their source, and obedience, their object. 140 For these reasons,
one requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the “necessary and appropriate
actions and measures to suppress and prevent acts of terrorism and lawless violence.”

Unlike the term “lawless violence” which is unarguably extant in our statutes and the Constitution, and
which is invariably associated with “invasion, insurrection or rebellion,” the phrase “acts of terrorism” is
still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of
terrorism.

In fact, this “definitional predicament” or the “absence of an agreed definition of terrorism” confronts not
only our country, but the international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the “fight against terrorism” has become one of
the basic slogans when it comes to the justification of the use of force against certain states and against
groups operating internationally. Lists of states “sponsoring terrorism” and of terrorist organizations are
set up and constantly being updated according to criteria that are not always known to the public, but are
clearly determined by strategic interests.

The basic problem underlying all these military actions—or threats of the use of force as the most recent
by the United States against Iraq—consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by
armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying “One country’s terrorist is another country’s freedom
fighter.” The apparent contradiction or lack of consistency in the use of the term “terrorism” may further
be demonstrated by the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only
a few, were originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts—the differentia specifica distinguishing those acts
from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to reach a
consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate “terrorism” with any violent act by non-state
groups against civilians, state functionaries or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO)—which
is a terrorist group for Israel and a liberation movement for Arabs and Muslims—the Kashmiri resistance
groups—who are terrorists in the perception of India, liberation fighters in that of Pakistan—the earlier
Contras in Nicaragua—freedom fighters for the United States, terrorists for the Socialist camp—or, most
drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period
they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for
the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that
cannot be reconciled in any way—because of opposing political interests that are at the roots of those
perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the
same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of an
occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will “fluctuate” accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak of a “liberation struggle,” not
of “terrorism” when acts of violence by this group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism
exactly because of these conflicting interests of sovereign states that determine in each and every instance
how a particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom
fighter dichotomy. A “policy of double standards” on this vital issue of international affairs has been the
unavoidable consequence.

This “definitional predicament” of an organization consisting of sovereign states—and not of peoples, in

spite of the emphasis in the Preamble to the United Nations Charter!—has become even more serious in
the present global power constellation: one superpower exercises the decisive role in the Security
Council, former great powers of the Cold War era as well as medium powers are increasingly being
marginalized; and the problem has become even more acute since the terrorist attacks of 11 September
2001 I the United States.141

The absence of a law defining “acts of terrorism” may result in abuse and oppression on the part of the
police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet
the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant
to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act
can only be considered a crime if there is a law defining the same as such and imposing the corresponding
penalty thereon.

So far, the word “terrorism” appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January
16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled “Codifying
The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive
Organizations.” The word “terrorism” is mentioned in the following provision: “That one who conspires
with any other person for the purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x.”

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines)
enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define “acts
of terrorism.” Since there is no law defining “acts of terrorism,” it is President Arroyo alone, under G.O.
No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is
absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies
and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5.
These acts go far beyond the calling-out power of the President. Certainly, they violate the due process
clause of the Constitution. Thus, this Court declares that the “acts of terrorism” portion of G.O. No. 5 is
unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond
what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their
authority in pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396(David et al.)

The Constitution provides that “the right of the people to be secured in their persons, houses, papers and
effects against unreasonable search and seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.”142 The plain import of the language of the Constitution is that searches, seizures and
arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of
arrest. Thus, the fundamental protection given by this provision is that between person and police must
stand the protective authority of a magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested
without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought
at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal
suspect; fourth,he was treated brusquely by policemen who “held his head and tried to push him” inside
an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually
released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a
warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and
x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During
the inquest for the charges of inciting to seditionand violation of BP 880, all that the arresting officers
could invoke was their observation that some rallyists were wearing t-shirts with the invective  “Oust
Gloria Now” and their erroneous assumption that petitioner David was the leader of the
rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of
insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if
he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated
that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally. 147

But what made it doubly worse for petitioners David et al. is that not only was their right against
warrantless arrest violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress of grievances.

“Assembly” means a right on the part of the citizens to meet peaceably for consultation in respect to
public affairs. It is a necessary consequence of our republican institution and complements the right of
speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except
on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In
other words, like other rights embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is intended to be held in
a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right
to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and
present danger that warranted the limitation of that right. As can be gleaned from circumstances, the
charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor
General, during the oral argument, failed to justify the arresting officers’ conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded
as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be
preserved, is not as to the auspices under which the meeting was held but as to its purpose; not as to the
relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have
formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for
their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of
prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members
of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis
of Malacañang’s directive canceling all permits previously issued by local government units. This is
arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that
“freedom of assembly is not to be limited, much less denied, except on a showing of a  clear and
present danger of a substantive evil that the State has a right to prevent.”149 Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that
the State may deny the citizens’ right to exercise it. Indeed, respondents failed to show or convince the
Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local
government units. They have the power to issue permits and to revoke such permits after due notice and
hearing on the determination of the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits. 150 The first time they learned of it was at the time of
the dispersal. Such absence of notice is a fatal defect. When a person’s right is restricted by government
action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and
according to procedure.

G.R. No. 171409,(Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of
the press. Petitioners’ narration of facts, which the Solicitor General failed to refute, established the
following: first, the Daily Tribune’s offices were searched without warrant;second, the police operatives
seized several materials for publication; third, the search was conducted at about 1:00 o’ clock in the
morning of February 25, 2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth, policemen stationed themselves at
the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael
Defensor was quoted as saying that such raid was “meant to show a ‘strong presence,’ to tell media
outlets not to connive or do anything that would help the rebels in bringing down this
government.” Director General Lomibao further stated that “if they do not follow the standards—and
the standards are if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017—we will recommend a ‘takeover.’”
National Telecommunications Commissioner Ronald Solis urged television and radio networks
to “cooperate“ with the government for the duration of the state of national emergency. He warned that
his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set
out for media coverage during times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the
conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in
connection with one specific offence to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the
search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or
any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient
age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it
be served in the daytime, unless the property is on the person or in the place ordered to be searched, in
which case a direction may be inserted that it be served at any time of the day or night. All these rules
were violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the  Burgos v. Chief of
Staff152 this Court held that—
As heretofore stated, the premises searched were the business and printing offices of the “Metropolitan
Mail” and the “We Forum” newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing and publication of said
newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners’
freedom to express themselves in print. This state of being is patently anathematic to a democratic
framework where a free, alert and even militant press is essential for the political enlightenment
and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the “Metropolitan Mail” and “We
Forum” newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their
enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the
vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are
plain censorship. It is that officious functionary of the repressive government who tells the citizen that he
may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of
punishment should he be so rash as to disobey. 153 Undoubtedly, the The Daily Tribune was subjected to
these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant
disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment
on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The
motto should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune’s offices and the seizure of its materials for publication and other papers are illegal; and that
the same are inadmissible “for any purpose,” thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune
for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings.
Is that not in admission of the admissibility of these clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and
these are inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past
issues. So why do you have to go there at 1 o’clock in the morning and without any search warrant? Did
they become suddenly part of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on
Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the
police could go and inspect and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not
condone this. If the people who have been injured by this would want to sue them, they can sue and
there are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor
General, illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the
occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their responsibility. 157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and “should
result in no constitutional or statutory breaches if applied according to their letter.”

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of
the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its
provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens’
rights under the Constitution, this Court has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is
considered an integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021—a supervening event—would have
normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts
were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one
similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that
allegedly PP 1017 would be reimposed “if the May 1 rallies” become “unruly and violent.” Consequently,
the transcendental issues raised by the parties should not be “evaded;” they must now be resolved to
prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President
for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article
VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous
provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to
enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated
by the President; and (3) to impose standards on media or any form of prior restraint on the press,
are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the
Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility
and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President—acting as
Commander-in-Chief—addressed to subalterns in the AFP to carry out the provisions of PP 1017.
Significantly, it also provides a valid standard—that the military and the police should take only the
“necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence.”But the words “acts of terrorism” found in G.O. No. 5 have not been legally defined and made
punishable by Congress and should thus be deemed deleted from the said G.O. While “terrorism” has
been denounced generally in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFP’s authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the
warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical
seizures of some articles for publication and other materials, are not authorized by the Constitution, the
law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative
sanctions on the individual police officers concerned. They have not been individually identified and
given their day in court. The civil complaints or causes of action and/or relevant criminal Informations
have not been presented before this Court. Elementary due process bars this Court from making any
specific pronouncement of civil, criminal or administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends
in themselves. How to give the military the power it needs to protect the Republic without
unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic
state.During emergency, governmental action may vary in breadth and intensity from normal times, yet
they should not be arbitrary as to unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political
philosophies is that, it is possible to grant government the authority to cope with crises without
surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the
AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency
under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or business affected with public interest
without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should
implement PP 1017, i.e. whatever is “necessary and appropriate actions and measures to suppress
and prevent acts of lawless violence.“ Considering that “acts of terrorism” have not yet been defined
and made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the
KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were
committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition
of standards on media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

(On leave)
LEONARDO A. QUISUMBING
REYNATO S. PUNO
Asscociate Justice
Associate Justice
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO
Associate Justice Asscociate Justice
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Asscociate Justice
 CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.
Associate Justice Asscociate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Asscociate Justice
MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Notes:

1
Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark – Lecturer,Volume XIX,
1971, p. 29.

2
 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.

3
 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who
propounded universal impermanence and that all things, notably opposites are interrelated.

4
 Respondents’ Comment dated March 6, 2006.

5
Ibid.

6
Ibid.

7
 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex “I” of Respondents’
Consolidated Comment.

8
 Respondents’ Consolidated Comment.

9
Ibid.

10
Ibid.

11
 Petition in G.R. No. 171396, p. 5.

12
 Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed
were broadcast as “breaking news” by the major television stations of this country.
13
 Petition in G.R. No. 171400, p. 11.

14
Ibid.

15
 The prime duty of the Government is to serve and protect the people. The Government may call upon
the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.

16
 No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.

17
 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.

18
 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the Government for redress of grievances.

19
 (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress,
such powers shall cease upon the next adjournment thereof.

20
 In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.

21
 1 Cranch 137 [1803].

22
 Howard L. MacBain, “Some Aspects of Judicial Review,”Bacon Lectures on the Constitution of the
United States (Boston: Boston University Heffernan Press, 1939), pp. 376-77.

23
 The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to
have a justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. 79).

24
 Cruz, Philippine Political Law, 2002 Ed., p. 259.

25
Ibid.

26
Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

27
Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425
SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91;
and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590.
28
Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421
SCRA 21; Vda. De Dabao v. Court of Appeals, supra.

29
Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.

30
 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.

31
Province of Batangas v. Romulo, supra.

32
Lacson v. Perez, supra.

33
Province of Batangas v. Romulo, supra.

34
Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona,
Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085,
February 3, 2004, 421 SCRA 656.

35
Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.

36
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

37
 Black’s Law Dictionary, 6th Ed. 1991, p. 941.

38
Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

39
 275 Ky 91, 120 SW2d 765 (1938).

40
 19 Wend. 56 (1837).

41
 232 NC 48, 59 SE2d 359 (1950).

42
 302 U.S. 633.

43
 318 U.S. 446.

44
 65 Phil. 56 (1937).

45
 G.R. No. 117, November 7, 1945 (Unreported).

46
 G.R. No. 2947, January 11, 1959 (Unreported).

47
 110 Phil. 331 (1960).

48
 77 Phil. 1012 (1947).

49
 84 Phil. 368 (1949) The Court held: “Above all, the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.”
50
 L-No. 40004, January 31, 1975, 62 SCRA 275.

51
 Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the
question is one of public duty and the enforcement of a public right, the people are the real party in
interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law;

Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court
held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied
by the mere fact that the petitioner is a citizen and part of the general public which possesses the right.

Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988,
163 SCRA 371, where the Court held that objections to taxpayers’ lack of personality to sue may be
disregarded in determining the validity of the VAT law;

Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no
expenditure of public funds was involved under the questioned contract, nonetheless considering its
important role in the economic development of the country and the magnitude of the financial
consideration involved, public interest was definitely involved and this clothed petitioner with the legal
personality under the disclosure provision of the Constitution to question it.

Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform,G.R. No. 78742,
July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not
covered by the definition of a “proper party,” nonetheless, it has the discretion to waive the requirement,
in determining the validity of the implementation of the CARP.

Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held
that it enjoys the open discretion to entertain taxpayer’s suit or not and that a member of the Senate has
the requisite personality to bring a suit where a constitutional issue is raised.

Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that
petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to
illegal expenditure of public money;

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where
the Court held that where serious constitutional questions are involved, the “transcendental importance”
to the public of the cases involved demands that they be settled promptly and definitely, brushing aside
technicalities of procedures;

De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the
importance of the issues involved concerning as it does the political exercise of qualified voters affected
by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi.

52
 G.R. No. 133250, July 9, 2002, 384 SCRA 152.

53
 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.

54
 G.R. No. 151445, April 11, 2002, 380 SCRA 739.

55
Supra.
56
 G.R. No. 118910, November 16, 1995, 250 SCRA 130.

57
 G.R. No. 132922, April 21, 1998, 289 SCRA 337.

58
 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.

59
 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

60
 235 SCRA 506 (1994).

61
Supra.

62
Supra.

63
 197 SCRA 52, 60 (1991).

64
Supra.

65
 See NAACP v. Alabama, 357 U.S. 449 (1958).

66
 G.R. No. 141284, August 15, 2000, 338 SCRA 81.

67
 From the deliberations of the Constitutional Commission, the intent of the framers is clear that the
immunity of the President from suit is concurrent only with his tenure and not his term. (De
Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).

68
 Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and lead modest lives.

69
Ibid., Sec. 2.

70
 No. 2908, September 30, 2005, 471 SCRA 87.

71
 91 Phil. 882 (1952).

72
 No. L-33964, December 11, 1971, 42 SCRA 448.

73
 No. L-35546, September 17, 1974, 59 SCRA 183.

74
 No. L-61388, April 20, 1983, 121 SCRA 472.

75
Tañada v. Cuenco, 103 Phil. 1051 (1957).

76
Lansang v. Garcia, supra, pp. 473 and 481.

77
Supra.
78
 “Five Justices—Antonio, Makasiar, Esguerra, Fernandez, and Aquino—took the position that the
proclamation of martial law and the arrest and detention orders accompanying the proclamation posed a
“political question” beyond the jurisdiction of the Court. Justice Antonio, in a separate opinion concurred
in by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a strong
presidency and had concentrated powers in times of emergency in the hands of the President and had
given him broad authority and discretion which the Court was bound to respect. He made reference to the
decision in Lansang v. Garcia but read it as in effect upholding the “political question” position.
Fernandez, in a separate opinion, also argued Lansang, even understood as giving a narrow scope of
review authority to the Court, affirmed the impossible task of ‘checking’ the action taken by the
President. Hence, he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the
abandonment of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muñoz-
Palma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated in Lansang, x x x
Barredo, however, wanted to have the best of both worlds and opted for the view that “political questions
are not per se beyond the Court’s jurisdiction … but that as a matter of policy implicit in the Constitution
itself the Court should abstain from interfering with the Executive’s Proclamation.” (Bernas, The 1987
Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 794.)

79
 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.

80
Supra.

81
Cruz, Philippine Political Law, 2002 Ed., p. 247.

82
Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

83
Supra, 481-482.

84
 Smith and Cotter, Powers of the President during Crises, 1972, p. 6.

85
Ibid.

86
The Social Contract (New York: Dutton, 1950), pp. 123-124.

87
 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.

88
Representative Government, New York, Dutton, 1950, pp. 274, 277-78.

89
The Discourses, Bk. 1, Ch. XXXIV.

90
 Smith and Cotter, Powers of the President During Crises, 1972. p. 8.

91
Ibid.

92
 See The Problem of Constitutional Dictatorship, p. 328.

93
Ibid., p. 353.

94
Ibid., pp. 338-341.
95
 Smith and Cotter, Powers of the President During Crises, 1972, p. 9.

96
Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580.

97
Ibid, pp. 574-584.

98
Smith and Cotter, Powers of the President During Crises, 1972, p. 10.

99
Rossiter, Constitutional Dictatorship,Princeton: Princeton University Press, 1948, pp. 298-306.

100
Smith and Cotter, Powers of the President During Crises, 1972, p. 11.

101
 Smith and Cotter, Powers of the President During Crises, 1972, p. 12.

102
 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See
Concurring Opinion J. Jackson.

103
 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001, 369 SCRA 393.

104
 481 U.S. 739, 95 L. Ed. 2d 697 (1987).

105
Supra.

106
 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.

107
Broadrick v. Oklahoma, 413 U.S. 601 (1973).

108
Ibid.

109
 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524
(1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).

110
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967, 20
SCRA 849 (1967).

111
 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President Arroyo’s
declaration of a “state of rebellion” pursuant to her calling-out power.

112
Supra.

113
Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v.
Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].

114
 Retired Associate Justice of the Supreme Court.

115
 Section 1, Article VII of the Constitution.
116
 Section 5, Article VII of the Constitution.

117
 Section 18, Article VII of the Constitution.

118
 Section 6, Article XVI of the Constitution.

119
 See Republic Act No. 6975.

120
 Ironically, even the 7th Whereas Clause of PP 1017 which states that “ Article 2, Section 4 of our
Constitution makes the defense and preservation of the democratic institutions and the State the
primary duty of Government” replicates more closely Section 2, Article 2 of the 1973 Constitution than
Section 4, Article 2 of the 1987 Constitution which provides that, “[t[he prime duty of the Government is
to serve and protect the people.”

121
 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115
SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.

122
 Section 17, Article XIV of the 1973 Constitution reads: “In times of national emergency when the
public interest so requires, the State may temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest.”

123
 Antieau, Constitutional Construction, 1982, p.21.

124
 Cruz, Philippine Political Law, 1998, p. 94.

125
 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).

126
 Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.

127
 Smith and Cotter, Powers of the President During Crises, 1972, p. 14

128
 The Federal Emergency Relief Act of 1933 opened with a declaration that the economic
depression created a serious emergency, due to wide-spread unemployment and the inadequacy of State
and local relief funds, . . . making it imperative that the Federal Government cooperate more effectively
with the several States and Territories and the District of Columbia in furnishing relief to their needy and
distressed people. President Roosevelt in declaring a bank holiday a few days after taking office in 1933
proclaimed that “heavy and unwarranted withdrawals of gold and currency from … banking institutions
for the purpose of hoarding; … resulting in “sever drains on the Nation’s stocks of gold … have created a
national emergency,” requiring his action. Enacted within months after Japan’s attack on Pearl Harbor,
the Emergency Price Control Act of 1942 was designed to prevent economic dislocations from
endangering the national defense and security and the effective prosecution of the war. (Smith and
Cotter, Powers of the President During Crises, 1972, p.18)

129
 The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and
necessity for relief in stricken agricultural areas and in another section referred to “ the present drought
emergency.”[129] The India Emergency Food Aid Act of 1951 provided for emergency shipments of food
to India to meet famine conditions then ravaging the great Asian sub-continent. The  Communication Act
of 1934 and its 1951 amendment grant the President certain powers in time of “public peril or disaster.”
The other statutes provide for existing or anticipated emergencies attributable to earthquake, flood,
tornado, cyclone, hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April
1937. It made “funds available for the control of incipient or emergency outbreaks of insect pests or plant
diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2
[a]) Supra.

130
 National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The FederalCivil Defense Act of 1950 contemplated an attack or series
of attacks by an enemy of the United States which conceivably would cause substantial damage or injury
to civilian property or persons in the United States by any one of several means; sabotage, the use of
bombs, shellfire, or atomic, radiological, chemical, bacteriological means or other weapons or processes.
Such an occurrence would cause a “National Emergency for Civil Defense Purposes,” or “a state of civil
defense emergency,” during the term which the Civil Defense Administrator would have recourse to
extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an
illustration in this context for emergency cooperation. “Emergency” as used in this compact shall mean
and include invasion, or other hostile action, disaster, insurrection or imminent danger thereof. ( Id.,
p.15-16)

131
Cruz, Philippine Political Law, 1998, p. 95.

132
 Record of the Constitutional Commission, Vol. III, pp. 266-267.

133
 Record of the Constitutional Convention, pp. 648-649.

134
 84 Phil. 368 (1949).

135
Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.

136
Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280
US 610, 74 L ed 653, 50 S Ct 158.

137
Sanitation Dist. V. Campbell (Ky),249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.

138
Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.

139
 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.

140
Ibid.

141
 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans
Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the
International Progress Organization, speaking on “The United Nations, The International Rule of Law and
Terrorism” cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No.
151445, April 11, 2002, 380 SCRA 739.

142
 Section 2, Article III of the 1987 Constitution.

143
 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51.

144
 Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.
145
 An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the
Government for Other Purposes.

146
 Annex “A” of the Memorandum in G.R. No. 171396, pp. 271-273.

147
Ibid.

148
 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.

149
Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.

150
Section 5.Application requirements – All applications for a permit shall comply with the following
guidelines:

xxxxxx

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall immediately inform the applicant who must be heard on
the matter.

151
 Petition in G.R. No. 171400, p. 11.

152
 No. L-64161, December 26, 1984, 133 SCRA 816.

153
 Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653,
102925 & 102983, March 5, 1992, 207 SCRA 1.

154
Boyd v. United States, 116 U.S. 616 (1886).

155
 Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.

156
Ibid., pp. 432-433.

157
Ibid, pp. 507-508.

158
 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

——————————————————————————————————————–

EN BANC

G.R. No. 171396 – DAVID et al. v. ARROYO, etc., et al. and related cases (G.R. Nos. 171409,
171483, 171485, 171400, 171424 and 171489)

Promulgated on:

May 3, 2006
x ————————————————————————— x

CONCURRING OPINION

CJ:

I was hoping until the last moment of our deliberations on these consolidated cases that the Court would
be unanimous in its Decision. After all, during the last two weeks, it decided with one voice two equally
contentious and nationally significant controversies involving Executive Order No. 464 1 and the so-
called Calibrated Preemptive Response policy.2

However, the distinguished Mr. Justice Dante O. Tinga’s Dissenting Opinion has made that hope an
impossibility. I now write, not only to express my full concurrence in the thorough and elegantly written
ponencia of the esteemed Mme. Justice Angelina Sandoval-Gutierrez, but more urgently to express a little
comment on Justice Tinga’s Dissenting Opinion (DO).

The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong with PP
1017. It labels the PP a harmless pronouncement—”an utter superfluity”—and denounces the ponencia
as an “immodest show of brawn” that “has imprudently placed the Court in the business of defanging
paper tigers.”

Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017 under its
present language and nuance. I respectfully disagree.

Let us face it. Even Justice Tinga concedes that under PP 1017, the police—”to some minds”—”may
have flirted with power.” With due respect, this is a masterful understatement. PP 1017 may be a paper
tiger, but—to borrow the colorful words of an erstwhile Asian leader—it has nuclear teeth that must
indeed be defanged.

Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives and the
perseverance of this Court in safeguarding the people’s constitutionally enshrined liberty. They are
playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down
the country. History will never forget, much less forgive, this Court if it allows such misadventure and
refuses to strike down abuse at its inception. Worse, our people will surely condemn the misuse of legal
hocus pocus to justify this trifling with constitutional sanctities.

And even for those who deeply care for the President, it is timely and wise for this Court to set down the
parameters of power and to make known, politely but firmly, its dogged determination to perform its
constitutional duty at all times and against all odds. Perhaps this country would never have had to
experience the wrenching pain of dictatorship; and a past President would not have fallen into the
precipice of authoritarianism, if the Supreme Court then had the moral courage to remind him steadfastly
of his mortality and the inevitable historical damnation of despots and tyrants. Let not this Court fall into
that same rut.

ARTEMIO V. PANGANIBAN
Chief Justice

Notes:
1
 Senate v. Ermita, GR No. 169777, April 20, 2006.

2
 Bayan v. Ermita, GR No. 169838, April 25, 2006.

——————————————————————————————————————–

G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Tañada III, Ronald Llamas, H. Harry L. Roque, Jr.,
Joel Ruiz Butuyan, Roger R. Rayel, Gary S. Mallari, Romel Regalado Bagares, Christopher F.C. Bolastig,
petitioners, v. Gloria Macapagal-Arroyo, as President and Commander-in-Chief, Executive Secretary
Eduardo Ermita, Hon. Avelino Cruz II, Secretary of National Defense, General Generoso Senga, Chief of
Staff, Armed Forces of the Philippines, Director General Arturo Lomibao, Chief, Philippine National
Police, respondents.)

G.R. No. 171409 (Niñez Cacho-Olivares and Tribune Publishing Co., Inc., petitioner, v. Honorable
Secretary Eduardo Ermita and Honorable Director General Arturo Lomibao, respondents.)

G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago, Teodoro A. Casino, Agapito A.
Aquino, Mario G. Aguja, Satur C. Ocampo, Mujiv S. Hataman, Juan Edgardo Angara, Teofisto DL.
Guingona III, Emmanuel Josel J. Villanueva, Liza L. Maza, Imee R. Marcos, Renato B. Magtubo, Justin
Marc SB. Chipeco, Roilo Golez, Darlene Antonio-Custudio, Loretta Ann P. Rosales, Josel G. Virador,
Rafael V. Mariano, Gilbert C. Remulla, Florencio G. Noel, Ana Theresa Hontiveros-Baraquel, Imelda C.
Nicolas, Marvic M.V.F. Leonenen, Neri Javier Colmenares, Movement of Concerned Citizens for Civil
Liberties, represented by Amado Gat Inciong, petitioners, v. Eduardo R. Ermita, Executive Secretary,
Avelino J. Cruz, Jr., Secretary, DND Ronaldo V. Puno, Secretary, DILG, Generoso Senga, AFP Chief of
Staff, Arturo Lumibao, Chief PNP, respondents.)

G.R. No. 171483 (Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and Secretary
General Joel Maglunsod, National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),
represented by its National President, Joselito v. Ustarez, Antonio C. Pascual, Salvador t. Carranza,
Emilia P. Dapulang, Martin Custodio, Jr., and Roque M. Tan, petitioners, v. Her Excellency, President
Gloria Macapagal-Arroyo, The Honorable Executive Secretary, Eduardo Ermita, The Chief of Staff,
Armed Forces of the Philippines, Generoso Senga, and the PNP Director General, Arturo Lomibao,
respondents.)

G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner, v. Executive Secretary Eduardo L.
Ermita. Lt. Gen. Generoso Senga, and Director General Arturo Lomibao, respondents.)

G.R. No. 171489 (Jose Anselmo I. Cadiz, Feliciano M. Bautista, Romulo R. Rivera, Jose Amor M.
Amorado, Alicia A. Risos-Vidal, Felimon C. Abelita III, Manuel P. Legaspi, J.B., Jovy C. Bernabe,
Bernard L. Dagcuta, Rogelio V. Garcia and Integrated Bar of the Philippines (IBP), petitioners, v. Hon.
Executive Secretary Eduardo Ermita, General Generoso Senga, in his capacity as AFP Chief of Staff, and
Direcotr General Arturo Lomibao, in his capacity as PNP Chief, respondents.)

G.R. No. 171424 (Loren B. Legarda, petitioner, v. Gloria Macapagal-Arroyo, in her capacity as President
and Commander-in-Chief; Arturo Lomibao, in his capacity as Director-General of the Philippine National
Police (PNP); Generoso Senga, in his capacity as Chief of Staff of the Armed Forces of the Philippine
(AFP); and Eduardo Ermita, in his capacity as Executive Secretary, respondents.)

x- – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x
DISSENTING OPINION

TINGA, J:

I regret to say that the majority, by its ruling today, has imprudently placed the Court in the business of
defanging paper tigers. The immodest show of brawn unfortunately comes at the expense of an exhibition
by the Court of a fundamental but sophisticated understanding of the extent and limits of executive
powers and prerogatives, as well as those assigned to the judicial branch. I agree with the majority on
some points, but I cannot join the majority opinion, as it proceeds to rule on non-justiciable issues based
on fears that have not materialized, departing as they do from the plain language of the challenged
issuances to the extent of second-guessing the Chief Executive. I respectfully dissent.

The key perspective from which I view these present petitions is my own ponencia in Sanlakas v.
Executive Secretary,1 which centered on Presidential Proclamation No. 427 (PP 427), declaring a “state of
rebellion” in 2003. The Court therein concluded that while the declaration was constitutional, such
declaration should be regarded as both regarded as “an utter superfluity”, which “only gives notice to the
nation that such a state exists and that the armed forces may be called to prevent or suppress it”, and
“devoid of any legal significance”, and “cannot diminish or violate constitutionally protected rights.” I
submit that the same conclusions should be reached as to Proclamation No. 1017 (PP 1017). Following
the cardinal precept that the acts of the executive are presumed constitutional is the equally important
doctrine that to warrant unconstitutionality, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication. 2 Also well-settled as a rule of construction is
that where thee are two possible constructions of law or executive issuance one of which is in harmony
with the Constitution, that construction should be preferred. 3 The concerns raised by the majority relating
to PP 1017 and General Order Nos. 5 can be easily disquieted by applying this well-settled principle.

I.

PP 1017Has No Legal Binding Effect; Creates No Rights and

Obligations; and Cannot Be Enforced or Invoked in a Court Of Law

First, the fundamentals. The President is the Chief of State and Foreign Relations, the chief of the
Executive Branch,4 and the Commander-in-Chief of the Armed Forces. 5 The Constitution vests on the
President the executive power.6 The President derives these constitutional mandates from direct election
from the people. The President stands as the most recognizable representative symbol of government and
of the Philippine state, to the extent that foreign leaders who speak with the President do so with the
understanding that they are speaking to the Philippine state.

Yet no matter the powers and prestige of the presidency, there are significant limitations to the office of
the President. The President does not have the power to make or legislate laws, 7 or disobey those laws
passed by Congress.8 Neither does the President have to power to create rights and obligations with
binding legal effect on the Filipino citizens, except in the context of entering into contractual or treaty
obligations by virtue of his/her position as the head of State. The Constitution likewise imposes
limitations on certain powers of the President that are normally inherent in the office. For example, even
though the President is the administrative head of the Executive Department and maintains executive
control thereof,9 the President is precluded from arbitrarily terminating the vast majority of employees in
the civil service whose right to security of tenure is guaranteed by the Constitution. 10

The President has inherent powers, 11 powers expressly vested by the Constitution, and powers expressly
conferred by statutes. The power of the President to make proclamations, while confirmed by statutory
grant, is nonetheless rooted in an inherent power of the presidency and not expressly subjected to
constitutional limitations. But proclamations, as they are, are a species of issuances of extremely limited
efficacy. As defined in the Administrative Code, proclamations are merely “acts of the President fixing a
date or declaring a status or condition of public moment or interest upon the existence of which the
operation of a specific law or regulation is made to depend”. 12 A proclamation, on its own, cannot create
or suspend any constitutional or statutory rights or obligations. There would be need of a complementing
law or regulation referred to in the proclamation should such act indeed put into operation any law or
regulation by fixing a date or declaring a status or condition of a public moment or interest related to such
law or regulation. And should the proclamation allow the operationalization of such law or regulation, all
subsequent resultant acts cannot exceed or supersede the law or regulation that was put into effect.

Under Section 18, Article VII of the Constitution, among the constitutional powers of the President, as
Commander-in-Chief, is to “call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion”.13 The existence of invasion or rebellion could allow the President to either suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law, but
there is a fairly elaborate constitutional procedure to be observed in such a case, including congressional
affirmation or revocation of such suspension or declaration, as well as the availability of judicial review.
However, the existence of lawless violence, invasion or rebellion does not ipso facto cause the “calling
out” of the armed forces, the suspension of habeas corpus or the declaration of martial law—it remains
within the discretion of the President to engage in any of these three acts should said conditions arise.

Sanlakas involved PP 427, which declared the existence of a “state of rebellion.” Such declaration could
ostensibly predicate the suspension of the privilege of the writ of habeas corpus or the declaration of
martial law, but the President did not do so. Instead, PP 427, and the accompanying General Order No. 4,
invoked the “calling out” of the Armed Forces to prevent lawless violence, invasion and rebellion.
Appreciably, a state of lawless violence, invasion or rebellion could be variable in scope, magnitude and
gravity; and Section 18, Article VII allows for the President to respond with the appropriate measured and
proportional response.

Indeed, the diminution of any constitutional rights through the suspension of the privilege of the writ or
the declaration of martial law is deemed as “strong medicine” to be used sparingly and only as a last
resort, and for as long as only truly necessary. Thus, the mere invocation of the “calling out” power stands
as a balanced means of enabling a heightened alertness in dealing with the armed threat, but without
having to suspend any constitutional or statutory rights or cause the creation of any new obligations. For
the utilization of the “calling out” power alone cannot vest unto the President any new constitutional or
statutory powers, such as the enactment of new laws. At most, it can only renew emphasis on the duty of
the President to execute already existing laws without extending a corresponding mandate to proceed
extra-constitutionally or extra-legally. Indeed, the “calling out” power does not authorize the President or
the members of the Armed Forces to break the law.

These were the premises that ultimately informed the Court’s decision in Sanlakas, which affirmed the
declaration of a “state of rebellion” as within the “calling out” power of the President, but which
emphasized that for legal intents and purposes, it should be both regarded as “an utter superfluity”, which
“only gives notice to the nation that such a state exists and that the armed forces may be called to prevent
or suppress it,” and “devoid of any legal significance,” as it could not “cannot diminish or violate
constitutionally protected rights.” The same premises apply as to PP 1017.

A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in order.

PP 427 PP 1017
NOW, THEREFORE, I, GLORIA MACAPAGAL- NOW, THEREFORE, I Gloria Macapagal-Arroyo,
ARROYO, by virtue of the powers vested in me by President of the Republic of the Philippines and
law, hereby confirm the existence of an actual and Commander-in-Chief of the Armed Forces of the
on-going rebellion, compelling me to declare a state Philippines, by virtue of the powers vested upon me
of rebellion.In view of the foregoing, I am issuing by Section 18, Article 7 of the Philippine
General Order No. 4 in accordance with Section 18, Constitution which states that: “The President. . .
Article VII of the Constitution, calling out the whenever it becomes necessary, . . . may call out
Armed Forces of the Philippines and the Philippine (the) armed forces to prevent or suppress. . .
National Police to immediately carry out the rebellion. . .,” and in my capacity as their
necessary actions and measures to suppress and Commander-in-Chief, do hereby command the
quell the rebellion with due regard to constitutional Armed Forces of the Philippines, to maintain law
rights. and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any
act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or
upon my direction; and as provided in Section 17,
Article 12 of the Constitution do hereby declare a
State of National Emergency.

Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two distinct phases. The
first is the declaration itself of a status or condition, a “state of rebellion” in PP 437, and a “state of
national emergency” under PP 1017. Both “state of rebellion” and “state of national emergency” are
terms within constitutional contemplation. Under Section 18, Article VII, the existence of a “state of
rebellion” is sufficient premise for either the suspension of the privilege of the writ of habeas corpus or
the declaration of martial law, though in accordance with the strict guidelines under the same provision.
Under Section 17, Article XII, the existence of a state of national emergency is sufficient ground for the
State, during the emergency, under reasonable terms prescribed by it, and when the public interest so
requires, to temporarily take over or direct the operation of any privately-owned public utility or business
affected with public interest. Under Section 23(2), Article VI, the existence of a state of national
emergency may also allow Congress to authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national
policy.

Certainly, the declaration could stand as the first step towards constitutional authorization for the exercise
by the President, the Congress or the State of extraordinary powers and prerogatives. However, the
declaration alone cannot put into operation these extraordinary powers and prerogatives, as the
declaration must be followed through with a separate act providing for the actual utilization of such
powers. In the case of the “state of rebellion,” such act involves the suspension of the writ or declaration
of martial law. In the case of the “state of national emergency,” such act involves either an order for the
takeover or actual takeover by the State of public utilities or businesses imbued with public interest or the
authorization by Congress for the President to exercise emergency powers.

In PP 427, the declaration of a “state of rebellion” did not lead to the suspension of the writ or the
declaration of martial law. In PP 1017, the declaration of a “state of national emergency” did not lead to
an authorization for the takeover or actual takeover of any utility or business, or the grant by Congress to
the President of emergency powers. Instead, both declarations led to the invocation of the calling out
power of the President under Section 18, Article VII, which the majority correctly characterizes as
involving only “ordinary police action.”
I agree with the ponencia’s holding that PP 1017 involves the exercise by the President of the “calling
out” power under Section 18, Article VII. In Integrated Bar v. Zamora,14 the Court was beseeched upon
to review an order of President Estrada commanding the deployment of the Marines in patrols around
Metro Manila, in view of an increase in crime. 15 The Court, speaking through Justice Santiago Kapunan,
affirmed the President’s order, asserting that “it is the unclouded intent of the Constitution to vest upon
the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the
President’s exercise of judgment deserves to be accorded respect from this Court.” 16 Tellingly, the order
of deployment by President Estrada was affirmed by the Court even though we held the view that the
power then involved was not the “calling out” power, but “the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare.” 17

It was also maintained in Integrated Bar that while Section 18, Article VII mandated two conditions—
actual rebellion or invasion and the requirement of public safety—before the suspension of the privilege
of the writ of habeas corpus or the declaration of martial law could be declared, “these conditions are not
required in the case of the power to call out the armed forces. The only criterion is that ‘whenever it
becomes necessary’, the President may call the armed forces ‘to suppress lawless violence, invasion or
rebellion.”18 The Court concluded that the implication was “that the President is given full discretion and
wide latitude in the exercise of the power to call as compared to the two other powers.” 19

These propositions were affirmed in Sanlakas, wherein the invocation of the calling out power was
expressly made by President Arroyo. The Court noted that for the purpose of exercising the calling out
power, the Constitution did not require the President to make a declaration of a state of rebellion. 20 At the
same time, the Court in Sanlakas acknowledged that “the President’s authority to declare a state of
rebellion springs in the main from her powers as chief executive and, at the same time, draws strength
from her Commander-in-Chief powers.”21

For still unclear reasons, the majority attempts to draw a distinction between Sanlakas and the present
petitions by that the statutory authority to declare a “state of rebellion” emanates from the Administrative
Code of 1987, particularly the provision authorizing the President to make proclamations. As such, the
declaration of a “state of rebellion,” pursuant to statutory authority, “was merely an act declaring a status
or condition of public moment or interest.” The majority grossly misreads Sanlakas, which expressly
roots the declaration of a state of rebellion from the wedded powers of the Chief Executive, under Section
1, Article VII, and as Commander-in-Chief, under Section 18, Article VII.

Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of the directive to
the Armed Forces of the Philippines to “suppress all forms of lawless violence”. But there are nuances to
the calling out power invoked in PP 1017 which the majority does not discuss. The directive “to suppress
all forms of lawless violence” is addressed not only to the Armed Forces but to the police as well. The
“calling out” of the police does not derive from Section 17, Article VII, or the commander-in-chief
clause, our national police being civilian in character. Instead, the calling out of the police is sourced from
the power of the President as Chief Executive under Section 1, Article VII, and the power of executive
control under Section 18, Article VII. Moreover, while the permissible scope of military action is limited
to acts in furtherance of suppressing lawless violence, rebellion, invasion, the police can be commanded
by the President to execute all laws without distinction in light of the presidential duty to execute all
laws.22

Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the discretion of the
Chief Executive in the exercise of the “calling out” power due to a recognition that the said power is of
limited import, directed only to the Armed Forces of the Philippines, and incapable of imposing any
binding legal effect on the citizens and other branches of the Philippines. Indeed, PP 1017 does not
purport otherwise. Nothing in its operative provisions authorize the President, the Armed Forces of the
Philippines, or any officer of the law, to perform any extra-constitutional or extra-legal acts. PP 1017 does
not dictate the suspension of any of the people’s guarantees under the Bill of Rights.

If it cannot be made more clear, neither the declaration of a state of emergency under PP 1017 nor
the invocation of the calling out power therein authorizes warrantless arrests, searches or seizures;
the infringement of the right to free expression, peaceable assembly and association and other
constitutional or statutory rights. Any public officer who nonetheless engaged or is engaging in such
extra-constitutional or extra-legal acts in the name of PP 1017 may be subjected to the appropriate
civil, criminal or administrative liability.

To prove this point, let us now compare PP 1017 with a different presidential issuance, one that was
intended to diminish constitutional and civil rights of the people. The said issuance, Presidential
Proclamation No. 1081, was issued by President Marcos in 1972 as the instrument of declaring martial
law. The operative provisions read:

PD. 1081 PP 1017

Now, thereof, I, Ferdinand E. Marcos, President Of NOW, THEREFORE, I Gloria Macapagal-Arroyo,

the Philippines, by virtue of the powers vested upon President of the Republic of the Philippines and
me by article VII, Section 10, Paragraph (2) of the Commander-in-Chief of the Armed Forces of the
Constitution, do hereby place the entire Philippines Philippines, by virtue of the powers vested upon me
as defined in the article I, Section 1, of the by Section 18, Article 7 of the Philippine
Constitution under martial law, and in my capacity Constitution which states that: “The President. . .
as their commander-in-chief, do hereby command whenever it becomes necessary, . . . may call out
the arned forces of the Philippines, to maintain law (the) armed forces to prevent or suppress. . .
and order throughout the Philippines, prevent or rebellion. . .,” and in my capacity as their
suppress all forms of lawless violence as well as any Commander-in-Chief, do hereby command the
act of insurrection or rebellion and to enforce Armed Forces of the Philippines, to maintain law
obedience to all the laws and decrees, orders and and order throughout the Philippines, prevent or
regulations promulgated by me personally or upon suppress all forms of lawless violence as well any
my direction.In addition, I do hereby order that all act of insurrection or rebellion and to enforce
persons presently detained, as well as others who obedience to all the laws and to all decrees, orders
may hereafter be similarly detained for the crimes of and regulations promulgated by me personally or
insurrection or rebellion, and all other crimes and upon my direction; and as provided in Section 17,
offenses committed in furtherance or on the Article 12 of the Constitution do hereby declare a
occasion thereof, or incident thereto, or in State of National Emergency.
connection therewith, for crimes against national
security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public
order, crimes involving usurpation of authority,
rank, title and improper use of names, uniforms and
insignia, crimes committed by public officers, and
for such other crimes as will be enumerated in
Orders that I shall subsequently promulgate, as well
as crimes as a consequence of any violation of any
decree, order or regulation promulgated by me
personally or promulgated upon my direction shall
be kept under detention until otherwise ordered
released by me or by my duly designated
representative. (emphasis supplied)

Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017 merely declared
the existence of a state of rebellion, an act ultimately observational in character, PP 1081 “placed the
entire Philippines under martial law,” an active implement 23 that, by itself, substituted civilian
governmental authority with military authority. Unlike in the 1986 Constitution, which was appropriately
crafted with an aversion to the excesses of Marcosian martial rule, the 1935 Constitution under which PP
1081 was issued left no intervening safeguards that tempered or limited the declaration of martial law.
Even the contrast in the verbs used, “place” as opposed to “declare,” betrays some significance. To
declare may be simply to acknowledge the existence of a particular condition, while to place ineluctably
goes beyond mere acknowledgement, and signifies the imposition of the actual condition even if it did not
exist before.

Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the contexts of such power
are wildly distaff in light of PP 1081’s accompanying declaration of martial law. Since martial law
involves the substitution of the military in the civilian functions of government, the calling out power
involved in PP 1081 is significantly greater than the one involved in PP 1017, which could only
contemplate the enforcement of existing laws in relation to the suppression of lawless violence, rebellion
or invasion and the maintenance of general peace and order.

Further proof that PP 1081 intended a wholesale suspension of civil liberties in the manner that PP 1017
does not even ponder upon is the subsequent paragraph cited, which authorizes the detention and
continued detention of persons for a plethora of crimes not only directly related to the rebellion or lawless
violence, but of broader range such as those “against national security,” or “public order.” The order of
detention under PP 1081 arguably includes every crime in the statute book. And most alarmingly, any
person detained by virtue of PP 1081 could remain in perpetual detention unless otherwise released upon
order of President Marcos or his duly authorized representative.

Another worthy point of contrast concerns how the Supreme Court, during the martial law era, dealt with
the challenges raised before it to martial law rule and its effects on civil liberties. While martial law stood
as a valid presidential prerogative under the 1935 Constitution, a ruling committed to safeguard civil
rights and liberties could have stood ground against even the most fundamental of human rights abuses
ostensibly protected under the 1935 and 1973 constitutions and under international declarations and
conventions. Yet a perusal of Aquino v. Enrile, 24 the case that decisively affirmed the validity of martial
law rule, shows that most of the Justices then sitting exhibited diffidence guised though as deference
towards the declaration of martial law. Note these few excerpts from the several opinions submitted in
that case which stand as typical for those times:

The present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns
or judicial precedents. xxx In the first place I am convinced (as are the other Justices), without need of
receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the
country when Proclamation No. 1081 was issued. It was a matter of contemporary history within the
cognizance not only of the courts but of all observant people residing here at that time. xxx The state of
rebellion continues up to the present. The argument that while armed hostilities go on in several provinces
in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there
is no need to maintain martial law all over the country, ignores the sophisticated nature and ramifications
of rebellion in a modern setting. It does not consist simply of armed clashes between organized and
identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind,
necessarily clandestine and operating precisely where there is no actual fighting. Underground
propaganda, through printed newssheets or rumors disseminated in whispers; recruiting of armed and
ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities
including sabotage and intelligence—all these are part of the rebellion which by their nature are usually
conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt
with in that context.25

xxx

[T]he fact that courts are open cannot be accepted as proof that the rebellion and insurrection, which
compellingly called for the declaration of martial law, no longer imperil the public safety. Nor are the
many surface indicia adverted to by the petitioners (the increase in the number of tourists, the choice of
Manila as the site of international conferences and of an international beauty contest) to be regarded as
evidence that the threat to public safety has abated. There is actual armed combat, attended by the somber
panoply of war, raging in Sulu and Cotabato, not to mention the Bicol region and Cagayan Valley. I am
hard put to say, therefore, that the Government’s claim is baseless.

I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex parte
Moyer, if it were the liberty alone of the petitioner Diokno that is in issue we would probably resolve the
doubt in his favor and grant his application. But the Solicitor General, who must be deemed to represent
the President and the Executive Department in this case, has manifested that in the President’s judgment
peace and tranquility cannot be speedily restored in the country unless the petitioners and others like them
meantime remain in military custody. For, indeed, the central matter involved is not merely the liberty of
isolated individuals, but the collective peace, tranquility and security of the entire nation. 26

xxx

It may be that the existence or non-existence or imminence of a rebellion of the magnitude that would
justify the imposition of martial law is an objective fact capable of judicial notice, for a rebellion that is
not of general knowledge to the public cannot conceivably be dangerous to public safety. But precisely
because it is capable of judicial notice, no inquiry is needed to determine the propriety of the Executive’s
action.

Again, while the existence of a rebellion may be widely known, its real extent and the dangers it may
actually pose to the public safety are not always easily perceptible to the unpracticed eye. In the present
day practices of rebellion, its inseparable subversion aspect has proven to be more effective and important
than “the rising (of persons) publicly and taking arms against the Government” by which the Revised
Penal Code characterizes rebellion as a crime under its sanction. Subversion is such a covert kind of anti-
government activity that it is very difficult even for army intelligence to determine its exact area of
influence and effect, not ot mention the details of its forces and resources. By subversion, the rebels can
extend their field of action unnoticed even up to the highest levels of the government, where no one can
always be certain of the political complexion of the man next to him, and this does not exclude the courts.
Arms, ammunition and all kinds of war equipment travel and are transferred in deep secrecy to strategic
locations, which can be one’s neighborhood without him having any idea of what is going on. There are
so many insidious ways in which subversives act, in fact too many to enumerate, but the point that
immediately suggests itself is that they are mostly incapable of being proven in court, so how are We to
make a judicial inquiry about them that can satisfy our judicial conscience.

The Constitution definitely commits it to the Executive to determine the factual bases and to forthwith act
as promptly as possible to meet the emergencies of rebellion and invasion which may be crucial to the life
of the nation. He must do this with unwavering conviction, or any hesitancy or indecision on his part will
surely detract from the needed precision in his choice of the means he would employ to repel the
aggression. The apprehension that his decision might be held by the Supreme Court to be a transgression
of the fundamental law he has sworn to ‘defend and preserve’ would deter him from acting when
precisely it is most urgent and critical that he should act, since the enemy is about to strike the mortal
blow.27

xxx

To start with, Congress was not unaware of the worsening conditions of peace and order and of, at least,
evident insurgency, what with the numerous easily verifiable reports of open rebellious activities in
different parts of the country and the series of rallies and demonstrations, often bloody, in Manila itself
and other centers of population, including those that reached not only the portals but even the session hall
of the legislature, but the legislators seemed not to be sufficiently alarmed or they either were indifferent
or did not know what to do under the circumstances. Instead of taking immediate measures to alleviate
the conditions denounced and decried by the rebels and the activists, they debated and argued long on
palliatives without coming out with anything substantial much less satisfactory in the eyes of those who
were seditiously shouting for reforms. In any event, in the face of the inability of Congress to meet the
situation, and prompted by his appraisal of a critical situation that urgently called for immediate action,
the only alternative open to the President was to resort to the other constitutional source of extraordinary
powers, the Constitution itself.28

xxx

Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering detention of
persons, the Proclamation pointedly limits arrests and detention only to those “presently detained, as well
as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other
crimes and offences committed in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith, for crimes against national security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public order, crimes involving usurpation of authority, rank,
title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such
other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a
consequence of any violation of any decree, order or regulation promulgated by me personally or
promulgated upon my direction.” Indeed, even in the affected areas, the Constitution has not been really
suspended much less discarded. As contemplated in the fundamental law itself, it is merely in a state of
anaesthesia, to the end that the much needed major surgery to save the nation’s life may be successfully
undertaken.29

xxx

The quoted lines of reasoning can no longer be sustained, on many levels, in these more enlightened
times. For one, as a direct reaction to the philosophy of judicial inhibition so frequently exhibited during
the Marcos dictatorship, our present Constitution has explicitly mandated judicial review of the acts of
government as part of the judicial function. As if to rebuff Aquino, the 1987 Constitution expressly
allows the Supreme Court to review the sufficiency of the factual basis of the proclamation of martial law
and decide the same within 30 days from the filing of the appropriate case. 30 The Constitution also
emphasizes that a state of martial law did not suspend the operation of the Constitution or supplant the
functioning of the judicial and legislative branches. 31 The expediency of hiding behind the political
question doctrine can no longer be resorted to.
For another, the renewed emphasis within domestic and international society on the rights of people, as
can be seen in worldwide democratic movements beginning with our own in 1986, makes it more difficult
for a government established and governed under a democratic constitution, to engage in official acts that
run contrary to the basic tenets of democracy and civil rights. If a government insists on proceeding
otherwise, the courts will stand in defense of the basic constitutional rights of the people.

Still, the restoration of rule under law, the establishment of national governmental instrumentalities, and
the principle of republicanism all ensure that the constitutional government retains significant powers and
prerogatives, for it is through such measures that it can exercise sovereign will in behalf of the people.
Concession to those presidential privileges and prerogatives should be made if due. The abuses of past
executive governments should not detract from these basic governmental powers, even as they may
warrant a greater degree of wariness from those institutions that balance power and the people
themselves. And the rule of law should prevail above all. The damage done by martial rule was not
merely personal but institutional, and the proper rebuke to the caprices and whims of the iniquitous past is
to respect the confines of the restored rule of law. 32

Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to matching PP
1081. It is a rank insult to those of us who suffered or stood by those oppressed under PP 1081 to
even suggest that the innocuous PP 1017 is of equivalent import.

PP 1017 Does Not Purport or Pretend that the President Has The Power to Issue Decrees

There is one seeming similarity though in the language of PP 1017 and PP 1081, harped upon by some of
the petitioners and alluded to by the majority. PP 1017 contains a command to the Armed Forces “to
enforce obedience to all the laws and to all decrees, orders and regulations by [the President]”. A similar
command was made under PP 1081. That in itself should not be a cause of surprise, since both PP 1017
and PP 1081 expressly invoked the “calling out” power, albeit in different contexts.

The majority however considers that since the President does not have the power to issue decrees, PP
1017 is unconstitutional insofar as it enforces obedience “to all decrees.” For one, it should be made clear
that the President currently has no power to issue decrees, and PP 1017 by no measure seeks to restore
such power to the President. Certainly, not even a single decree was issued by President Arroyo during
the several days PP 1017 was in effect, or during her term thus far for that matter.

At the same time, such power did once belong to the President during the Marcos era and was extensively
utilized by President Marcos. It has to be remembered that chafed as we may have under some of the
Marcos decrees, per the 1987 Constitution they still remain as part of the law of the land unless
particularly stricken down or repealed by subsequent enactments. Indeed, when the President calls upon
the Armed Forces to enforce the laws, those subsisting presidential decrees issued by President Marcos in
the exercise of his legislative powers are included in the equation.

This view is supported by the rules of statutory construction. The particular passage in PP 1017 reads “”to
enforce obedience to all the laws and to all decrees, orders and regulations,” with the phrases “all the laws
and to all decrees” separated by a comma from “orders and regulations promulgated by me.” Inherently,
laws and those decrees issued by President Marcos in the exercise of his legislative powers, and even
those executive issuances of President Aquino in the exercise of her legislative powers, belong to the
same class, superior in the hierarchy of laws than “orders and regulations.” The use of the conjunction
“and” denotes a joinder or union, “relating the one to the other.” 33 The use of “and” establishes an
association between laws and decrees distinct from orders and regulations, thus permitting the application
of the doctrine of noscitur a sociis to construe “decrees” as those decrees which at present have the force
of law. The dividing comma further signifies the segregation of concepts between “laws and decrees” on
one hand, and “orders and regulations” on the other.

Further proof that “laws and decrees” stand as a class distinct from “orders and regulations” is the
qualifying phrase “promulgated by me,” which necessarily refers only to orders and regulations.
Otherwise, PP 1017 would be ridiculous in the sense that the obedience to be enforced only relates to
laws promulgated by President Arroyo since she assumed office in 2001. “Laws and decrees” do not
relate only to those promulgated by President Arroyo, but other laws enacted by past sovereigns, whether
they be in the form of the Marcos presidential decrees, or acts enacted by the American Governor-General
such as the Revised Penal Code. Certainly then, such a qualification sufficiently addresses the fears of the
majority that PP 1017 somehow empowers or recognizes the ability of the current President to promulgate
decrees. Instead, the majority pushes an interpretation that, if pursued to its logical end, suggests that the
President by virtue of PP 1017 is also arrogating unto herself, the power to promulgate laws, which are in
the mold of enactments from Congress. Again, in this respect, the grouping of “laws” and “decrees”
separately from “orders” and “regulations” signifies that the President has not arrogated unto herself the
power to issue decrees in the mold of the infamous Marcos decrees.

Moreover, even assuming that PP 1017 was intended to apply to decrees which the current President
could not very well issue, such intention is of no consequence, since the proclamation does not intend or
pretend to grant the President such power in the first place. By no measure of contemplation could PP
1017 be interpreted as reinstating to the President the power to issue decrees.

I cannot see how the phrase “enforce obedience to decrees” can be the source of constitutional mischief,
since the implementation of PP 1017 will not vest on the President the power to issue such decrees. If the
Court truly feels the need to clarify this point, it can do so with the expediency of one sentence or even a
footnote. A solemn declaration that the phrase is unconstitutional would be like killing a flea with
dynamite when insect powder would do.

PP 1017 A Valid Exercise of Prerogatives

Inherent and Traditional in the Office of The Presidency

Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in relation to the
citizenry, the courts or on Congress. Still, there is another purpose and dimension behind PP 1017 that fall
within the valid prerogatives of the President.

The President, as head of state, is cast in a unique role in our polity matched by no other individual or
institution. Apart from the constitutional powers vested on the President lie those powers rooted in the
symbolic functions of the office. There is the common expectation that the President should stand as the
political, moral and social leader of the nation, an expectation not referred to in of the oath of office, but
expected as a matter of tradition. In fact, a President may be cast in crisis even if the Chief Executive has
broken no law, and faithfully executed those laws that exist, simply because the President has failed to
win over the hearts and minds of the citizens. As a Princeton academic, Woodrow Wilson once observed
that with the People, the President is everything, and without them nothing, and the sad decline of his own
eventual presidency is no better proof of the maxim. Such are among the vagaries of the political office,
and generally beyond judicial relief or remedy.

Justice Robert Jackson’s astute observation in Youngstown Sheet & Tube Co. v. Sawyer 34 on the unique
nature of the presidency, has been widely quoted:
Executive power has the advantage of concentration in a single head in whose choice the whole Nation
has a part, making him the focus of public hopes and expectations. In drama, magnitude, and finality, his
decisions so far overshadow any others that almost alone he fills the public eye and ear. No other
personality in public life can begin to compete with him in access to the public mind through modern
methods of communications. By his prestige as head of state and his influence upon public opinion he
exerts a leverage upon those who are supposed to check and balance his power which often cancels their
effectiveness.35

Correspondingly, the unique nature of the office affords the President the opportunity to profoundly
influence the public discourse, not necessarily through the enactment or enforcement of laws, but
specially by the mere expediency of taking a stand on the issues of the day. Indeed, the President is
expected to exercise leadership not merely through the proposal and enactment of laws, but by making
such vital stands. U.S. President Theodore Roosevelt popularized the notion of the presidency as a “bully
pulpit”, in line with his belief that the President was the steward of the people limited only by the specific
restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its
constitutional powers.

Many times, the President exercises such prerogative as a responsive measure, as after a mass tragedy or
calamity. Indeed, when the President issues a declaration or proclamation of a state of national mourning
after a disaster with massive casualties, while perhaps de rigeur, is not the formalistic exercise of
tradition, but a statement that the President, as the representative of the Filipino people, grieves over the
loss of life and extends condolences in behalf of the people to the bereaved. This is leadership at its most
solemn.

Yet the President is not precluded, in the exercise of such role, to be merely responsive. The popular
expectation in fact is of a pro-active, dynamic chief executive with an ability to identify problems or
concerns at their incipience and to respond to them with all legal means at the earliest possible time. The
President, as head of state, very well has the capacity to use the office to garner support for those great
national quests that define a civilization, as President Kennedy did when by a mere congressional address,
he put America on track to the goal of placing a man on the moon. Those memorable presidential
speeches memorized by schoolchildren may have not, by themselves, made operative any law, but they
served not only merely symbolic functions, but help profoundly influence towards the right direction, the
public opinion in the discourse of the times. Perhaps there was no more dramatic example of the use of
the “bully pulpit” for such noble purposes than in 1964, when an American President from Texas stood
before a Congress populated by many powerful bigots, and fully committed himself as no other President
before to the cause of civil rights with his intonation of those lines from the civil rights anthem, “we shall
overcome.”

From an earlier era in American history, Lincoln’s Emancipation Proclamation stands out as a
presidential declaration which clearly staked American polity on the side of the democratic ideal, even
though the proclamation itself was of dubitable legal value. The proclamation, in short form, “freed the
slaves”, but was not itself free of legal questions. For one, the notion that the President could, by himself,
alter the civil and legal status of an entire class of persons was dubious then and now, although President
Lincoln did justify his action as in the exercise of his powers as commander-in-chief during wartime, “as
a fit and necessary war measure for suppressing [the] rebellion.” Moreover, it has been pointed out that
the Proclamation only freed those slaves in those states which were then in rebellion, and it eventually
took the enactment of the Thirteenth Amendment of the U.S. Constitution to legally abolish involuntary
servitude.36 Notwithstanding the legal haze surrounding it, the Emancipation Proclamation still stands as a
defining example not only of the Lincoln Presidency, but of American democratic principles. It may be
remembered to this day not exactly as an operational means by which slaves were actually freed, but as a
clear rhetorical statement that slavery could no longer thenceforth stand.

The President as Chief Government Spokesperson of the democratic ideals is entrusted with a heady but
comfortable pursuit. But no less vital, if somewhat graver, is the role of the President as the Chief
Defender of the democratic way of life. The “calling out” power assures the President such capability to a
great extent, yet it will not fully suffice as a defense of democracy. There is a need for the President to
rally the people to defend the Constitution which guarantees the democratic way of life, through means
other than coercive. I assert that the declaration of a state of emergency, on premises of a looming armed
threat which have hardly been disputed, falls within such proper functions of the President as the defender
of the Constitution. It was designed to inform the people of the existence of such a threat, with the
expectation that the citizenry would not aid or abet those who would overturn through force the
democratic government. At the same time, the Proclamation itself does not violate the Constitution as it
does not call for or put into operation the suspension or withdrawal of any constitutional rights, or even
create or diminish any substantive rights.

I submit that it would be proper for the Court to recognize that PP 1017 strikes a commendable balance
between the Constitution, the “calling out” power, and the inherent function of the Presidency as defender
of the democratic constitution. PP 1017 keeps within the scope and limitations of these three standards. It
asserts the primacy of the democratic order, civilian control over the armed forces, yet respects
constitutional and statutory guarantees of the people.

II.

Section 17, Article XII of the Constitution In Relation to PP 1017

My next issue with the majority pertains to the assertion that the President does not have the power to
take over public utilities or businesses impressed with public interest under Section 17, Article XII of the
Constitution without prior congressional authorization. I agree that the power of the State to take over
such utilities and businesses is highly limited, and should be viewed with suspicion if actually enforced.

Yet qualifications are in order with regard to how Section 17, Article XII actually relates of PP 1017.

I agree with the majority that a distinction should be asserted as between the power of the President to
declare a state of emergency, and the exercise of emergency powers under Section 17, Article XII. The
President would have the power to declare a state of emergency even without Section 17, Article XII.

At the same time, it should be recognized that PP 1017, on its face and as applied, did not involve the
actual takeover of any public utility or business impressed with public interest. To some minds, the police
action in relation to the Daily Tribune may have flirted with such power, yet ultimately the newspaper
was able to independently publish without police interference or court injunction. It may be so that since
PP 1017 did make express reference to Section 17, Article XII, but it should be remembered that the
constitutional provision refers to a two-fold power of the State to declare a national emergency and to
take over such utilities and enterprises. The first power under Section 17, Article XII is not distinct from
the power of the President, derived from other constitutional sources, to declare a state of national
emergency. Reference to Section 17, Article XII in relation to the power to declare a state of national
emergency is ultimately superfluous. A different situation would obtain though if PP 1017 were invoked
in the actual takeover of a utility or business, and in such case, full consideration of the import of Section
17, Article XII would be warranted. But no such situation obtains in this case, and any discussion relating
to the power of the State to take over a utility or business under Section 17, Article XII would ultimately
be obiter dictum.

I respectfully submit that the Court, in these petitions, need not have engaged this potentially contentious
issue, especially as it extends to whether under constitutional contemplation, the President may act in
behalf of the State in exercising the powers under Section 17, Article XII. Nonetheless, considering that
the majority has chosen to speak out anyway, I will express agreement that as a general rule, the President
may exercise such powers under Section 17, Article XII only under the grant of congressional approval.
Certainly, the notion that congressional authority is required under Section 17, Article XII is not evident
from the provision. Even Fr. Bernas notes that Section 17 does not require, as does Article VI, Section
23(2), that the authorization be “by law”, thus leaving the impression that the authorization can come
from the President.37

After the 1989 coup d’etat, President Aquino issued issued Proclamation No. 503 on 6 December 1989,
declaring a state of national emergency, and referring therein to Section 17, Article XII by citing the
entire provision. The declaration was subsequently reaffirmed by Congress when two weeks after, it
enacted Republic Act No. 6826. Notably, Section 3(3) of the law authorized the President “to temporarily
takeover or direct the operation of any privately-owned public utility or business affected with public
interest that violates the herein declared national policy”. Tellingly, however, such authority was granted
by Congress expressly “pursuant to Article VI, Section 23(2) of the Constitution”, and not the take-over
provision in Section 17, Article XII. Evidently, the view that Section 17, Article XII requires prior
congressional authority has some novelty to it.

Still, I concede that it is fundamentally sound to construe Section 17 as requiring congressional authority
or approval before the takeover under the provision may be effected. After all, the taking over of a
privately owned public utility or business affected with public interest would involve an infringement on
the right of private enterprise to profit; or perhaps even expropriation for a limited period.
Constitutionally, the taking of property can only be accomplished with due process of law, 38 and the
enactment of appropriate legislation prescribing the terms and conditions under which the President may
exercise the powers of the State under Section 17 stands as the best assurance that due process of law
would be observed.

The fact that Section 17 is purposely ambivalent as to whether the President may exercise the power
therein with or without congressional approval leads me to conclude that it is constitutionally permissible
to recognize exceptions, such as in extreme situations wherein obtention of congressional authority is
impossible or inexpedient considering the emergency. I thus dissent to any proposition that such
requirement is absolute under all circumstances. I maintain that in such extreme situations, the President
may exercise such authority subject to judicial review.

It should be admitted that some emergencies are graver and more imminent than others. It is not within
the realm of impossibility that by reason of a particularly sudden and grave emergency, Congress may not
be able to convene to grant the necessary congressional authority to the President. Certainly, if bombs
from a foreign invader are falling over Manila skies, it may be difficult, not to mention unnecessarily
onerous, to require convening Congress before the President may exercise the functions under Section 17,
Article XII. The proposition of the majority may be desirable as the general rule, but the correct rule that
should be adopted by the Court should not be so absolute so as to preclude the exercise by the President
of such power under extreme situations.
In response to this argument, the majority cites portions of Araneta v. Dinglasan,39 most pertinent of
which reads: “The point is, under this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious.”

For one, Araneta did not involve a situation wherein the President attempted to exercise emergency
powers without congressional authority; concerning as it did the exercise by President Quirino of those
emergency powers conferred several years earlier by Congress to President Quezon at the onset of the
Pacific phase of World War II. The Court therein ruled that the emergency that justified then the
extraordinary grant of powers had since expired, and that there no longer existed any authority on the part
of the President to exercise such powers, notwithstanding that the law, Commonwealth Act No. 671, “did
not in term fix the duration of its effectiveness”.

Clearly, the context in which the Court made that observation in Araneta is not the same context within
which my own observations oscillate. My own submission is premised on the extreme situation wherein
Congress may be physically unable to convene, an exceptional circumstance which the hard-line stance of
the majority makes no concessions for.

Indeed, even the factual milieu recounted in Araneta conceded that such extreme circumstance could
occur, when it noted President Quezon’s claim that he was impelled to call for a special session of the
National Assembly after foreseeing that “it was most unlikely that the Philippine Legislature would hold
its next regular session which was to open on January 1, 1942.” 40 That the National Assembly then was
able to convene and pass Commonwealth Act No. 671 was fortunate, but somewhat a luxury nonetheless.
Indeed, it is not beyond the realm of possibility that the emergency contemplated would be so grave that a
sufficient number of members of Congress would be physically unable to convene and meet the quorum
requirement.

Ultimately though, considering that the authorized or actual takeover under Section 17, Article XII, is not
presented as a properly justiciable issue. Nonetheless, and consistent with the general tenor, the majority
has undertaken to decide this non-justiciable issue, and to even place their view in the dispositive portion
in a bid to enshrine it as doctrine. In truth, the Court’s pronouncement on this point is actually obiter. It is
hoped that should the issue become ripe for adjudication before this Court, the obiter is not adopted as a
precedent without the qualification that in extreme situations wherein congressional approval is
impossible or highly impractical to obtain, the powers under Section 17, Article XII may be authorized by
the President.

III.

Overbreadth and “Void for Vagueness” Doctrines Applicable Not Only To Free Speech Cases

The majority states that “the overbreadth doctrine is an analytical tool developed for testing ‘on their
faces’ statutes in free speech cases” 41, and may thus be entertained “in cases involving statutes which, by
their terms, seek to regulate only ‘spoken words’, and not conduct. A similar characterization is made as
to the “void for vagueness” doctrine, which according to the majority, is “subject to the same principles
governing overbreadth doctrine … also an analytical tool for testing ‘on their faces’ statutes in free
speech cases.”42

As I noted in my Separate Opinion in Romualdez v. Sandiganbayan, 43 citing Justice Kapunan, there is a

viable distinction between “void for vagueness” and “overbreadth” which the majority sadly ignores.
A view has been proferred that “vagueness and overbreadth doctrines are not applicable to penal laws.”
These two concepts, while related, are distinct from each other. On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech. On the other hand,
the “void-for-vagueness” doctrine applies to criminal laws, not merely those that regulate speech or
other fundamental constitutional right. (not merely those that regulate speech or other fundamental
constitutional rights.) The fact that a particular criminal statute does not infringe upon free speech does
not mean that a facial challenge to the statute on vagueness grounds cannot succeed. 44

The distinction may prove especially crucial since there has been a long line of cases in American
Supreme Court jurisprudence wherein penal statutes have been invalidated on the ground that they were
“void for vagueness.” As I cited in Romualdez v. Sandiganbayan, 45 these cases are Connally v. General
Construction Co,.46Lanzetta v. State of New Jersey,47Bouie v. City of Columbia,48 Papachristou v. City of
Jacksonville,49 Kolender v. Lawson,50 and City of Chicago v. Morales.51

Granting that perhaps as a general rule, overbreadth may find application only in “free speech” 52 cases, it
is on the other hand very settled doctrine that a penal statute regulating conduct, not speech, may be
invalidated on the ground of “void for vagueness”. In Romualdez, I decried the elevation of the suspect
and radical new doctrine that the “void for vagueness” challenge cannot apply other than in free speech
cases. My view on this point has not changed, and insofar as the ponencia would hold otherwise, I thus
dissent.

Moreover, even though the argument that an overbreadth challenge can be maintained only in free speech
cases has more jurisprudential moorings, the rejection of the challenge on that basis alone may prove
unnecessarily simplistic. I maintain that there is an even stronger ground on which the overbreadth and
“void for vagueness” arguments can be refuted—that Presidential Proclamation 1017 (PP 1017) neither
creates nor diminishes any rights or obligations whatsoever. In fact, I submit again that this proposition is
the key perspective from which the petitions should be examined.

IV.

General Order No. 5

Suffers No Constitutional Infirmity

The majority correctly concludes that General Order No. 5 is generally constitutional. However, they
make an unnecessary distinction with regard to “acts of terrorism”, pointing out that Congress has not yet
passed a law defining and punishing terrorism or acts of terrorism.

That may be the case, but does the majority seriously suggest that the President or the State is powerless
to suppress acts of terrorism until the word “terrorism” is defined by law? Terrorism has a widely
accepted meaning that encompasses many acts already punishable by our general penal laws. There are
several United Nations and multilateral conventions on terrorism 53, as well as declarations made by the
United Nations General Assembly denouncing and seeking to combat terrorism. 54 There is a general sense
in international law as to what constitutes terrorism, even if no precise definition has been adopted as
binding on all nations. Even without an operative law specifically defining terrorism, the State already has
the power to suppress and punish such acts of terrorism, insofar as such acts are already punishable, as
they almost always are, in our extant general penal laws. The President, tasked with the execution of all
existing laws, already has a sufficient mandate to order the Armed Forces to combat those acts of
terrorism that are already punishable in our Revised Penal Code, such as rebellion, coup d’etat, murder,
homicide, arson, physical injuries, grave threats, and the like. Indeed, those acts which under normal
contemplation would constitute terrorism are associated anyway with or subsumed under lawless
violence, which is a term found in the Constitution itself. Thus long ago, the State has already seen it fit to
punish such acts.

Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal acts, since such
power belongs to the legislative alone. Fortunately, General Order No. 5 does not assume to make such
redefinitions. It may have been a different matter had General Order No. 5 attempted to define “acts of
terrorism” in a manner that would include such acts that are not punished under our statute books, but the
order is not comported in such a way. The proper course of action should be to construe “terrorism” not in
any legally defined sense, but in its general sense. So long as it is understood that “acts of terrorism”
encompasses only those acts which are already punishable under our laws, the reference is not
constitutionally infirm.

The majority cites a theoretical example wherein a group of persons engaged in a drinking spree may be
arrested by the military or police in the belief that they were committing acts of terrorism pursuant to
General Order No. 5. Under the same logical framework that group of persons engaged in a drinking
spree could very well be arrested by the military or police in the belief that they are committing acts of
lawless violence pursuant to General Order No. 5, instead of acts of terrorism. Obviously such act would
be “abuse and oppression” on the part of the military and the police, whether justified under “lawless
violence” or “acts of terrorism”. Yet following the logic of the majority, the directive to prevent acts of
“lawless violence” should be nullified as well.

If the point of the majority is that there are no justiciable standards on what constitutes acts of terrorism, it
should be pointed out that only the following scenarios could ensue. For one, a person would actually be
arrested and charged with “acts of terrorism”, and such arrest or charge would be thrown out of the
courts, since our statute books do not criminalize the specific crime of terrorism. More probably, a person
will be arrested and charged for acts that may under the layperson’s contemplation constitutes acts of
terrorism, but would be categorized in the information and charge sheet as actual crimes under our
Revised Penal Code. I simply cannot see how General Order No. 5 could validate arrests and convictions
for non-existent crimes.

Interestingly, the majority, by taking issue with the lack of definition and possible broad context of “acts
of terrorism”, seems to be positively applying the arguments of “overbreadth” or “void for vagueness”,
arguments which they earlier rejected as applicable only in the context of free expression cases. The
inconsistency is breath-taking. While I disagree with the majority-imposed limitations on the applicability
of the “overbreadth” or “void for vagueness” doctrines, I likewise cannot accede to the application of
those doctrines in the context of General Order No. 5, for the same reason that they should not apply to
PP 1017. Neither General Order No. 5 nor PP 1017 is a penal statute, or have an operative legal effect of
infringing upon liberty, expression or property. As such, neither General Order No. 5 nor PP 1017 can
cause the deprivation of life, liberty or property, thus divorcing those issuances from the context of the
due process clause. The same absence of any binding legal effect of these two issuances correspondingly
disassociates them from the constitutional infringement of free expression or association. Neither “void
for vagueness” nor “overbreadth” therefore lie.

Another point. The majority concludes from General Order No. 5 that the military or police is limited in
authority to perform those acts that are “necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence,” and such acts committed beyond such authority are
considered illegal. I do not dispute such conclusion, but it must be emphasized that “necessary and
appropriate actions and measures” precisely do not authorize the military or police to commit unlawful
and unconstitutional acts themselves, even if they be geared towards suppressing acts of terrorism or
lawless violence. Indeed, with the emphasis that PP 1017 does not create new rights or obligations,
or diminish existing ones, it necessarily follows that General Order No. 5, even if premised on a
state of emergency, cannot authorize the military or police to ignore or violate constitutional or
statutory rights, or enforce laws completely alien to the suppression of lawless violence. Again,
following the cardinal principle of legal hermeneutics earlier adverted to, General Order No. 5 should be
viewed in harmony with the Constitution, and only if it the Order irreconcilably deviates from the
fundamental law should it be struck down.

V.

Court Should Refrain Making Any Further Declaration, For Now,

Relating to the Individual Grievances Raised by the Petitioners in Relation To PP 1017

I respectfully disagree with the manner by which the majority would treat the “void as applied” argument
presented by the petitioners. The majority adopts the tack of citing three particular injuries alleged by the
petitioners as inflicted with the implementation of PP 1017. The majority analyzes the alleged injuries,
correlates them to particular violations of the Bill of Rights, and ultimately concludes that such violations
were illegal.

The problem with this approach is that it would forever deem the Court as a trier or reviewer at first
instance over questions involving the validity of warrantless arrests, searches, seizures and the dispersal
of rallies, all of which entail a substantial level of factual determination. I agree that PP 1017 does not
expand the grounds for warrantless arrests, searches and seizures or dispersal of rallies, and that the
proclamation cannot be invoked before any court to assert the validity of such unauthorized actions. Yet
the problem with directly adjudicating that the injuries inflicted on David, et al., as illegal, would be that
such would have been done with undue haste, through an improper legal avenue, without the appropriate
trial of facts, and without even impleading the particular officers who effected the
arrests/searches/seizures.

I understand that the injurious acts complained of by the petitioners upon the implementation of PP 1017
are a source of grave concern. Indubitably, any person whose statutory or constitutional rights were
violated in the name of PP 1017 or General Order No. 5 deserves redress in the appropriate civil or
criminal proceeding, and even the minority wishes to makes this point as emphatically clear, if not
moreso, as the majority. Yet a ruling from this Court, without the proper factual basis or prayer for
remuneration for the injury sustained, would ultimately be merely symbolic. While the Court will
not be harmed by a symbolic reaffirmation of commitment to the principles in the Bill of Rights, it
will be harmed by a ruling that unduly and inappropriately expands the very limited function of
the Court as a trier of facts on first instance.

In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that our legal system may run counter-
intuitive in the sense that the seemingly or obviously guilty may still, after trial, be properly acquitted or
exonerated; to the extent that even an accused who murders another person in front of live television
cameras broadcast to millions of sets is not yet necessarily guilty of the crime of murder or
homicide.56 Hence, the necessity of a proper trial so as to allow the entire factual milieu to be presented,
tested and evaluated before the court. In my theoretical example, the said accused should nonetheless be
acquitted if the presence of exempting circumstances is established. The same principle applies in these
cases. Certainly, we in the Court can all agree that PP 1017 cannot be invoked to justify acts by the police
or military officers that go beyond the Constitution and the laws. But the course of prudence dictates that
the pronouncement of such a doctrine, while enforceable in a court of law, should not yet extend itself to
specific examples that have not yet been properly litigated. The function of this Court is to make legal
pronouncements not based on “obvious” facts, but on proven facts.

A haphazard declaration by the Court that the arrests or seizures were “illegal” would likewise preclude
any meaningful review or reevaluation of pertinent legal doctrines that otherwise could have been
reexamined had these acts been properly challenged in regular order. For example, the matter of the
warrantless arrests in these cases could have most certainly compelled the Court to again consider the
doctrine laid down in Umil v. Ramos on warrantless arrests and rebellion as a continuing crime, a
doctrine that may merit renewed evaluation. Yet any healthy reexamination of Umil, or other precedents
for that matter, require the presentation and trial of the proper factual predicates, a course which the
majority unfortunately “short-cuts” in this present decision.

Of course, despite the grandiloquent pronouncement by the majority that the acts complained of by the
petitioners and implemented pursuant to General Order No. 5 are illegal, it could nonetheless impose
civil, criminal or administrative sanctions on the individual police officers concerned, as these officers
had not been “individually identified and given their day in court”. Of course, the Court would be left
with pie on its face if these persons, once “given their day in court”, would be able to indubitably
establish that their acts were actually justified under law. Perhaps worse, the pronouncement of the
majority would have had the effect of prejudging these cases, if ever lodged, even before trial on the
merits.

Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot justify violation of
statutory or constitutional rights (a declaration which the minority would have no qualms assenting to)
would sufficiently arm those petitioners and other persons whose rights may have been injured in the
implementation of PP 1017, with an impeccable cause of action which they could pursue against the
violators before the appropriate courts. At the same time, if the officers or officials concerned have basis
to contend that no such rights were violated, for justifications independent of PP 1017 or General Order
No. 5, such claims could receive due consideration before the courts. Such a declaration would squarely
entrench the Court as a defender of the Bill of Rights, foster enforceable means by which the injured
could seek actual redress for the injury sustained, and preserve the integrity and order of our procedural
law.

VI.

Conclusion

The country-wide attention that the instant petitions have drawn should not make the Court lose focus on
its principal mission, which is to settle the law of the case. On the contrary, the highly political nature of
these petitions should serve as forewarning for the Court to proceed ex abundante cautelam, lest the
institution be unduly dragged into the partisan mud. The credibility of the Court is ensured by making
decisions in accordance with the Constitution without regard to the individual personalities involved; with
sights set on posterity, oblivious of the popular flavor of the day.

By deciding non-justiciable issues and prejudging cases and controversies without a proper trial on the
merits, the majority has diminished the potency of this Court’s constitutional power in favor of rhetorical
statements that afford no quantifiable relief. It is for the poet and the politician to pen beautiful paeans to
the people’s rights and liberties, it is for the Court to provide for viable legal means to enforce and
safeguard these rights and liberties. When the passions of these times die down, and sober retrospect
accedes, the decision of this Court in these cases will be looked upon as an extended advisory opinion.
Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those interested and tasked
with preserving our civil liberties. They may even stand, in the appropriate contexts, as viable partisan
political issues. But the plain fact remains that, under legal contemplation, these issuances are valid on
their face, and should result in no constitutional or statutory breaches if applied according to their letter.

I vote to DISMISS all the petitions.

DANTE O. TINGA
Associate Justice

Notes:

1
 G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.

2
 R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.

3
 “When a statute is reasonably susceptible of two constructions, one constitutional and the other
unconstitutional, that construction in favor of its constitutionality shall be adopted and the construction
that will render it invalid rejected.” See R. Agpalo, id., at 266; citing Mutuc v. COMELEC, G.R. No.
32717, Nov. 26, 1970, 36 SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure Adm., G.R. No. 21064,
Feb. 18, 1970, 31 SCRA 413; American Bible Society v. City of Manila, 101 Phil. 386 (1957); Alba v.
Evangelista, 100 Phil. 683 (1957); Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet Exploration, Inc.
v. Department of Agriculture and Natural Resources, G.R. No. 29534, Fe. 28, 1977, 75 SCRA 285
(1977); De la Cruz v. Paras, G.R. No. 42591, July 25, 1983, 123 SCRA 569.

4
 See Constitution, Section 17, Article VII.

5
 See Constitution, Section 18, Article VII.

6
 See Constitution, Section 1, Article VII.

7
 The plenary legislative power being vested in Congress. See Constitution, Section 1, Article VI.

8
 “[The President] shall ensure that the laws be faithfully executed.” See Constitution, Section 17, Article
VII.

9
 Supra note 4.

10
 “No officer or employee of the civil service shall be removed or suspended except for cause provided
by law.” See Constitution, Section 2(3), Article IX-B.

11
 See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA 760, 763.

12
 See Administrative Code, Section 4, Chapter 2, Book III.

13
 See Section 18, Article VII, Constitution.

14
 392 Phil. 618 (2000)
15
 Id. at 627.

16
 Id. at 644.

17
 Id. at 636.

18
 Id. at 643.

19
 Id.

20
Sanlakas v. Executive Secretary, supra note 1, at 668.

21
 Id. at 677.

22
 Supra note 8.

23
 The declaration of martial law then within the President to make under authority of Section 10(2),
Article VII of the 1935 Constitution.

24
 No. L-35546, 17 September 1974, 59 SCRA 183.

25
 Aquino, Jr. v. Enrile, id. at 240-241.

26
 Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.

27
 Id. at 398-399, Barredo, J., concurring.

28
 Id. at 405-406, Barredo, J., concurring.

29
 Id. at 423, Barredo, J., concurring.

30
 Constitution, Section 18, Article VII.

31
 Constitution, Section 18, Article VII.

32
 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.

33
 See R. Agpalo, Statutory Construction, p. 206.

34
 343 U.S. 579, 653-654, J. Jackson, concurring.

35
 Ibid.

36
 See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed., at 119-120.

37
 See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 ed.,
at 1183.
38
 See Section 1, Article III, Constitution.

39
 84 Phil. 368 (1949).

40
 Id. at 379.

41
 Decision, infra.

42
 Id.

43
 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.

44
 Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil. 290, J. Kapunan, dissenting, at pp. 382-384.

45
 Id., at 398-401.

46
 269 U.S. 385, 393 (1926).

47
 306 U.S. 451 (1939).

48
 378 U.S. 347 (1964).

49
 405 U.S. 156 (1972).

50
 461 U.S. 352 (1983).

51
 Case No. 97-1121, 10 June 1999.

52
 But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme Court invalidated a
portion of the Subversive Control Activities Act on the ground of overbreadth as it sought to proscribe the
exercise the right of free association, also within the First Amendment of the United States Constitution
but a distinct right altogether from free expression.

53
 To name a few, the Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents (1973); International Convention for the Suppression of
Terrorist Bombings (1997); International Convention for the Suppression of the Financing of Terrorism
(1999); the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). See
“United Nations Treaty Collection – Conventions on Terrorism”,
http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April 2006).

54
 See, e.g., Resolution No. 49/60, Adopted by the United Nations General Assembly on 17 February
1995.

55
 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga, dissenting.

56
 Id. at 345.

———————————————————————————————————————-
EN BANC

G.R. No. 171396 — Professor Randolf S. David, et al., Petitioners,versus Gloria Macapagal-Arroyo,

as President and Commander-in-Chief, et al, Respondents.

G.R. No. 171409 — Ninez Cacho-Olivares and Tribune Publishing Co., Inc., Petitioners, versus
Honorable Secretary Eduardo Ermita and Honorable Director General Arturo C.
Lomibao, Respondents.

G.R. No. 171485 — Francis Joseph G. Escudero, et al. Petitioners, versus Eduardo R. Ermita, et
al., Respondents.

G.R. No. 171483 — Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and
Secretary General Joel Maglunsod, et al., Petitioners, versus Her Excellency President Gloria
Macapagal Arroyo, et al., Respondents.

G.R. No. 171400 — Alternative Law Groups, Inc.. (ALG), Petitioners,versus Executive Secretary,

Eduardo Ermita, et al., Respondents.

G.R. No. 171489 – Jose Anselmo I. Cadiz, et al., Petitioners,

versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents.

G.R. No. 171424 — Loren B. Legarda, Petitioner,versus President Gloria Macapagal-Arroyo, in her

capacity as President and Commander-in-Chief, et al., Respondents;

Promulgated:

May 3, 2006

x —————————————————————————————- x

CONCURRING OPINION

YNARES-SANTIAGO, J.:

The only real security for social well-being is the free exercise of men’s minds.

-Harold J. Laski, Professor of Government and Member of the British Labor Party, in his book, Authority
in the Modern State (1919).

The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin Cardozo once wrote,
are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small
encroachments, the scorn and derision of those who have no patience with general principles. 1 In an open
and democratic society, freedom of thought and expression is the matrix, the indispensable condition, of
nearly every other form of freedom.2
I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President Gloria
Macapagal Arroyo declared a state of national emergency, and General Order No. 5 (GO No. 5), issued
by the President pursuant to the same proclamation are both partly unconstitutional.

I fully agree with the pronouncement that PP 1017 is no more than the exercise by the President, as the
Commander-in-Chief of all armed forces of the Philippines, of her power to call out such armed
forces whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion.
This is allowed under Section 18, Article VII of the Constitution.

However, such “calling out” power does not authorize the President to direct the armed forces or the
police to enforce laws not related to lawless violence, invasion or rebellion. The same does not allow the
President to promulgate decrees with the force and effect similar or equal to laws as this power is vested
by the Constitution with the legislature. Neither is it a license to conduct searches and seizures or arrests
without warrant except in cases provided in the Rules of Court. It is not a sanction to impose any form of
prior restraint on the freedom of the press or expression or to curtail the freedom to peaceably assemble or
frustrate fundamental constitutional rights.

In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S. Azcuna emphasized that the right to
peaceably assemble and petition for redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. These
rights constitute the very basis of a functional democratic polity, without which all the other rights would
be meaningless and unprotected.

On the other hand, the direct reference to Section 17, Article XII of the Constitution as the constitutional
basis for the declaration of a state of national emergency is misplaced. This provision can be found under
the article on National Economy and Patrimony which presupposes that “national emergency” is of an
economic, and not political, nature. Moreover, the said provision refers to the temporary takeover by the
State of any privately-owned public utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the public interest so requires and subject to
“reasonable terms” which the State may prescribe.

The use of the word “State” as well as the reference to “reasonable terms” under Section 17, Article XII
can only pertain to Congress. In other words, the said provision is not self-executing as to be validly
invoked by the President without congressional authorization. The provision merely declares a state
economic policy during times of national emergency. As such, it cannot be taken to mean as authorizing
the President to exercise “takeover” powers pursuant to a declaration of a state of national emergency.

The President, with all the powers vested in her by Article VII, cannot arrogate unto herself the power to
take over or direct the operation of any privately owned public utility or business affected with public
interest without Congressional authorization. To do so would constitute an ultra vires act on the part of
the Chief Executive, whose powers are limited to the powers vested in her by Article VII, and cannot
extend to Article XII without the approval of Congress.

Thus, the President’s authority to act in times of national emergency is still subject to the limitations
expressly prescribed by Congress. This is a featured component of the doctrine of separation of powers,
specifically, the principle of checks and balances as applicable to the political branches of government,
the executive and the legislature.

With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the armed forces and the
national police “to prevent and suppress acts of terrorism and lawless violence in the country.” There is
presently no law enacted by Congress that defines terrorism, or classifies what acts are punishable as acts
of terrorism. The notion of terrorism, as well as acts constitutive thereof, is at best fraught with ambiguity.
It is therefore subject to different interpretations by the law enforcement agencies.

As can be gleaned from the facts, the lack of a clear definition of what constitutes “terrorism” have led
the law enforcement officers to necessarily guess at its meaning and differ as to its application giving rise
to unrestrained violations of the fundamental guarantees of freedom of peaceable assembly and freedom
of the press.

In Kolender v. Lawson,4 the United States Supreme Court nullified a state statute requiring persons who
loitered or wandered on streets to provide “credible and reliable” identification and to account for their
presence when requested to do so by a police officer. Writing for the majority, Justice Sandra Day
O’Connor noted that the most important aspect of vagueness doctrine was the imposition of guidelines
that prohibited arbitrary, selective enforcement on constitutionally suspect basis by police officers. This
rationale for invocation of that doctrine was of special concern in this case because of the potential for
arbitrary suppression of the fundamental liberties concerning freedom of speech and expression, as well
as restriction on the freedom of movement.

Thus, while I recognize that the President may declare a state of national emergency as a statement of a
factual condition pursuant to our ruling in Sanlakas v. Executive Secretary, 5 I wish to emphasize that the
same does not grant her any additional powers. Consequently, while PP 1017 is valid as a declaration of a
factual condition, the provisions which purport to vest in the President additional powers not theretofore
vested in her must be struck down. The provision under GO No. 5 ordering the armed forces to carry out
measures to prevent or suppress “acts of terrorism” must be declared unconstitutional as well.

Finally, it cannot be gainsaid that government action to stifle constitutional liberties guaranteed under the
Bill of Rights cannot be preemptive in meeting any and all perceived or potential threats to the life of the
nation. Such threats must be actual, or at least gravely imminent, to warrant government to take proper
action. To allow government to preempt the happening of any event would be akin to “putting the cart
before the horse,” in a manner of speaking. State action is proper only if there is a clear and present
danger of a substantive evil which the state has a right to prevent. We should bear in mind that in a
democracy, constitutional liberties must always be accorded supreme importance in the conduct of daily
life. At the heart of these liberties lies freedom of speech and thought—not merely in the propagation of
ideas we love, but more importantly, in the advocacy of ideas we may oftentimes loathe. As succinctly
articulated by Justice Louis D. Brandeis:

Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x It is the
function of speech to free men from the bondage of irrational fears. To justify suppression of free speech
there must be reasonable ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one. x x x But even advocacy of
violation, however reprehensible morally, is not a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy and incitement, between preparation and
attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear
and present danger it must be shown either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe that such advocacy was then
contemplated.6

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.

CONSUELOYNARES-SANTIAGO
Associate Justice

Notes:

1
 Cardozo, B. Nature of Judicial Process, 1921.

2
Palko v. State of Connecticut, 302 U.S. 319 (1937).

3
 G.R. Nos. 169838, 169848, 169881, April 25, 2006.

4
 461 U.S. 352 (1983).

5
 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.

6
 Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357 (1927).
 2. Sanidad v. COMELEC, G.R. No. L-44640, October 12, 1976

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,

vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary injunction relates to the
power of the incumbent President of the Philippines to propose amendments to the present
Constitution in the absence of the interim National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991
calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays")
to resolve, among other things, the issues of martial law, the I . assembly, its replacement, the
powers of such replacement, the period of its existence, the length of the period for tile exercise
by the President of his present powers.1

Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring
the provisions of presidential Decree No. 229 providing for the manner of voting and canvass of
votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of
October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed Section 4, of
Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below.2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033,
stating the questions to be submitted to the people in the referendum-plebiscite on October 16,
1976. The Decree recites in its "whereas" clauses that the people's continued opposition to the
convening of the National Assembly evinces their desire to have such body abolished and
replaced thru a constitutional amendment, providing for a legislative body, which will be
submitted directly to the people in the referendum-plebiscite of October 16.
The questions ask, to wit:

(1) Do you want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following
amendments to the Constitution? For the purpose of the second question, the referendum shall
have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the
Constitution.

PROPOSED AMENDMENTS:

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa.
Members of the interim Batasang Pambansa which shall not be more than 120, unless
otherwise provided by law, shall include the incumbent President of the Philippines,
representatives elected from the different regions of the nation, those who shall not be less than
eighteen years of age elected by their respective sectors, and those chosen by the incumbent
President from the members of the Cabinet. Regional representatives shall be apportioned
among the regions in accordance with the number of their respective inhabitants and on the
basis of a uniform and progressive ratio while the sectors shall be determined by law. The
number of representatives from each region or sector and the, manner of their election shall be
prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(l) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and
selection of the members, convene the interim Batasang Pambansa and preside over its
sessions until the Speaker shall have been elected. The incumbent President of the Philippines
shall be the Prime Minister and he shall continue to exercise all his powers even after the
interim Batasang Pambansa is organized and ready to discharge its functions and likewise he
shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty
five. Constitution and the powers vested in the President and the Prime Minister under this
Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions,
and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and
shall be subject only to such disqualifications as the President (Prime Minister) may prescribe.
The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many
Deputy Prime Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall
have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency
or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the Supervision of the Commission on
Elections may be called at any time the government deems it necessary to ascertain the will of
the people regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall
continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that
they have been ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and control of the
October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and conducting the Referendum Plebiscite on October
16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it
directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-
Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the
incumbent President to exercise the constituent power to propose amendments to the new
Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional
or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections, The Solicitor General principally maintains that petitioners have no standing to sue;
the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the
transition period, only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as
L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to, or revision of the Constitution
during the transition period is expressly conferred on the interim National Assembly under
Section 16, Article XVII of the Constitution.3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by
RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L-
44714, to restrain the implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for deliberation renders
the plebiscite a nullity; to lift Martial Law, the President need not consult the people via
referendum; and allowing 15-.year olds to vote would amount to an amendment of the
Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of
age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and
Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a stature
Presidential Decrees are of such nature-may be contested by one who will sustain a direct
injuries as a in result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the expenditure of public
funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all
appropriation of Five Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure
of these amounts of public money sufficiently clothes them with that personality to litigate the
validity of the Decrees appropriating said funds. Moreover, as regards taxpayer's suits, this
Court enjoys that open discretion to entertain the same or not. 7 For the present case, We deem
it sound to exercise that discretion affirmatively so that the authority upon which the disputed
Decrees are predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside
the domain of judicial review. We disagree. The amending process both as to proposal and
ratification, raises a judicial question. 8 This is especially true in cases where the power of the
Presidency to initiate the of normally exercised by the legislature, is seriously doubted. Under
the terms of the 1973 Constitution, the power to propose amendments o the constitution resides
in the interim National Assembly in the period of transition (See. 15, Transitory provisions). After
that period, and the regular National Assembly in its active session, the power to propose
amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1,
pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather
than calling the National Assembly to constitute itself into a constituent assembly the incumbent
President undertook the proposal of amendments and submitted the proposed amendments
thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16.
Unavoidably, the regularity regularity of the procedure for amendments, written in lambent
words in the very Constitution sought to be amended, raises a contestable issue. The
implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have
the force and effect of legislation are assailed as invalid, thus the issue of the validity of said
Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2
(2), Article X of the new Constitution provides: "All cases involving the constitutionality of a
treaty, executive agreement, or law may shall be heard and decided by the Supreme Court en
banc and no treaty, executive agreement, or law may be declared unconstitutional without the
concurrence of at least ten Members. ..." The Supreme Court has the last word in the
construction not only of treaties and statutes, but also of the Constitution itself The amending,
like all other powers organized in the Constitution, is in form a delegated and hence a limited
power, so that the Supreme Court is vested with that authorities to determine whether that
power has been discharged within its limits.

Political questions are neatly associated with the wisdom, of the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act, that
matter is definitely justiciable or non-political. What is in the heels of the Court is not the wisdom
of the act of the incumbent President in proposing amendments to the Constitution, but his
constitutional authority to perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to propose amendments is
therefore a downright justiciable question. Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the Constitution provides how it may be
amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure
followed or the authority assumed was valid or not.10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability,
that the question of the President's authority to propose amendments and the regularity of the
procedure adopted for submission of the proposal to the people ultimately lie in the judgment of
the A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the amending process when they
ratified the present Constitution in 1973? Whether, therefore, the constitutional provision has
been followed or not is the proper subject of inquiry, not by the people themselves of course
who exercise no power of judicial but by the Supreme Court in whom the people themselves
vested that power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the submission to and ratification by the people.

Indeed, the precedents evolved by the Court or, prior constitutional cases underline the
preference of the Court's majority to treat such issue of Presidential role in the amending
process as one of non-political impression. In the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality of Presidential Decree No. 73 "submitting to the
Pilipino people (on January 15, 1973) for ratification or rejection the Constitution of the Republic
of the Philippines proposed by the 1971 Constitutional Convention and appropriating fund s
therefore "is a political one, was rejected and the Court unanimously considered the issue as
justiciable in nature. Subsequently in the Ratification Cases 12 involving the issue of whether or
not the validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino
people of the constitution proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor General was dismissed, the
Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the
majority view, said, Thus, in the aforementioned plebiscite cases, We rejected the theory of the
respondents therein that the question whether Presidential Decree No. 73 calling a plebiscite to
be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of
a political nature, and We unanimously declared that the issue was a justiciable one. With
Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus
cases, questioning Our authority to determine the constitutional sufficiency of the factual bases
of the Presidential proclamation suspending the privilege of the writ of habeas corpus on August
21, 1971, despite the opposite view taken by this Court in Barcelon vs. Baker and Montenegro
vs. Castaneda, insofar as it adhered to the former case, which view We, accordingly,
abandoned and refused to apply. For the same reason, We did not apply and expressly
modified, in Gonzales vs. Commission on Elections, the political-question theory adopted in
Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito,
urged by the Solicitor General, was decisively refused by the Court. Chief Justice Concepcion
continued: "The reasons adduced in support thereof are, however, substantially the same as
those given in support on the political question theory advanced in said habeas corpus and
plebiscite cases, which were carefully considered by this Court and found by it to be legally
unsound and constitutionally untenable. As a consequence. Our decisions in the
aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which
gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention. (2) The National Assembly may, by a
vote of two-thirds of all its Members, call a constitutional convention or, by a
majority vote of all its Members, submit the question of calling such a convention
to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid
when ratified by a majority of the votes cast in a plebiscite which shall be held not
later than three months after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim
Prime Minister, may, by a majority vote of all its Members, propose amendments
to this Constitution. Such amendments shall take effect when ratified in
accordance with Article Sixteen hereof.

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period
of normalcy and period of transition. In times of normally, the amending process may be initiated
by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all its
members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the Members
of the National Assembly. However the calling of a Constitutional Convention may be submitted
to the electorate in an election voted upon by a majority vote of all the members of the National
Assembly. In times of transition, amendments may be proposed by a majority vote of all the
Members of the National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is
vested with that prerogative of discretion as to when he shall initially convene the interim
National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The
Constitutional Convention intended to leave to the President the determination of the time when
he shall initially convene the interim National Assembly, consistent with the prevailing conditions
of peace and order in the country." Concurring, Justice Fernandez, himself a member of that
Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional Convention
voted on the Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the discretion as to when he could convene the interim National
Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the
proposal that it be convened 'immediately', made by Delegate Pimentel (V) was rejected. The
President's decision to defer the convening of the interim National Assembly soon found support
from the people themselves. In the plebiscite of January 10-15, 1973, at which the ratification of
the 1973 Constitution was submitted, the people voted against the convening of the interim
National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies ("bagangays")
reiterated their sovereign will to withhold the convening of the interim National Assembly. Again,
in the referendum of February 27, 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the members of
Congress and delegates of the Constitutional Convention, who were deemed automatically
members of the I interim National Assembly, were against its inclusion since in that referendum
of January, 1973, the people had already resolved against it.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of
amendment to a Constitution, that body is not in the usual function of lawmaking. lt is not
legislating when engaged in the amending process.16 Rather, it is exercising a peculiar power
bestowed upon it by the fundamental charter itself. In the Philippines, that power is provided for
in Article XVI of the 1973 Constitution (for the regular National Assembly) or in Section 15 of the
Transitory Provisions (for the National Assembly). While ordinarily it is the business of the
legislating body to legislate for the nation by virtue of constitutional conferment amending of the
Constitution is not legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character'. The distinction,
however, is one of policy, not of law.17 Such being the case, approval of the President of any
proposed amendment is a misnomer 18 The prerogative of the President to approve or
disapprove applies only to the ordinary cases of legislation. The President has nothing to do
with proposition or adoption of amendments to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is a crisis

government today are more or less concentrated in the President. 20 According to Rossiter,
"(t)he concentration of government power in a democracy faced by an emergency is a
corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most
free states it has generally been regarded as imperative that the total power of the government
be parceled out among three mutually independent branches executive, legislature, and
judiciary. It is believed to be destructive of constitutionalism if any one branch should exercise
any two or more types of power, and certainly a total disregard of the separation of powers is,
as Madison wrote in the Federalist, No. 47, 'the very definition of tyranny.' In normal times the
separation of powers forms a distinct obstruction to arbitrary governmental action. By this same
token, in abnormal times it may form an insurmountable barrier to a decisive emergency action
in behalf of the state and its independent existence. There are moments in the life of any
government when all powers must work together in unanimity of purpose and action, even if this
means the temporary union of executive, legislative, and judicial power in the hands of one
man. The more complete the separation of powers in a constitutional system, the more difficult
and yet the more necessary will be their fusion in time of crisis. This is evident in a comparison
of the crisis potentialities of the cabinet and presidential systems of government. In the former
the all-important harmony of legislature and executive is taken for granted; in the latter it is
neither guaranteed nor to be to confidently expected. As a result, cabinet is more easily
established and more trustworthy than presidential dictatorship. The power of the state in crisis
must not only be concentrated and expanded; it must also be freed from the normal system of
constitutional and legal limitations. 21 John Locke, on the other hand, claims for the executive in
its own right a broad discretion capable even of setting aside the ordinary laws in the meeting of
special exigencies for which the legislative power had not provided. 22 The rationale behind such
broad emergency powers of the Executive is the release of the government from "the paralysis
of constitutional restrains" so that the crisis may be ended and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a conceded valid
at. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the
Transitory Provisions, thus:23

The incumbent President of the Philippines shall initially convene the interim
National Assembly and shall preside over its sessions until the interim Speaker
shall have been elected. He shall continue to exercise his powers and
prerogatives under the nineteen hundred and thirty-five Constitution and the
powers vested in the President and the Prime Minister under this Constitution
until the calls upon the interim National Assembly to elect the interim President
and the interim Prime Minister, who shall then exercise their respective powers
vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or

done by the incumbent President shall be part of the law of the land, and shall
remain valid, binding, and effective even after lifting of martial law or the
ratification of this Constitution, unless modified, revoked, or superseded by
subsequent proclamations, orders, decrees, instructions, or other acts of the
incumbent President, or unless expressly and explicitly modified or repealed by
the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking
powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing
Rossiter, this is an extremely important factor in any constitutional dictatorship which extends
over a period of time. The separation of executive and legislature ordained in the Constitution
presents a distinct obstruction to efficient crisis government. The steady increase in executive
power is not too much a cause for as the steady increase in the magnitude and complexity of
the problems the President has been called upon by the Filipino people to solve in their behalf,
which involve rebellion, subversion, secession, recession, inflation, and economic crisis-a crisis
greater than war. In short, while conventional constitutional law just confines the President's
power as Commander-in-Chief to the direction of the operation of the national forces, yet the
facts of our political, social, and economic disturbances had convincingly shown that in meeting
the same, indefinite power should be attributed to tile President to take emergency measures 25

IV

Authority of the incumbent

President to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim
National Assembly during the transition period. However, the initial convening of that Assembly
is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of
that judgment, the President opted to defer convening of that body in utter recognition of the
people's preference. Likewise, in the period of transition, the power to propose amendments to
the Constitution lies in the interim National Assembly upon special call by the President (See. 15
of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President
decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim
Assembly vis-a-vis his assumption of that body's legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the interim Assembly,
there is no reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature. Rather, with the interim National
Assembly not convened and only the Presidency and the Supreme Court in operation, the urges
of absolute necessity render it imperative upon the President to act as agent for and in behalf of
the people to propose amendments to the Constitution. Parenthetically, by its very constitution,
the Supreme Court possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to undertake the
amending process would leave the governmental machineries at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government
"to end the crisis and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the President now, are mere agents of
the people .26

2. The President's action is not a unilateral move. As early as the referendums of January 1973
and February 1975, the people had already rejected the calling of the interim National
Assembly. The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay, and the Pambansang Katipunan ng mga Barangay,
representing 42,000 barangays, about the same number of Kabataang Barangay organizations,
Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed
the President that the prevailing sentiment of the people is for the abolition of the interim
National Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle
the issues of martial law, the interim Assembly, its replacement, the period of its existence, the
length of the period for the exercise by the President of its present powers in a referendum to be
held on October 16 .28 The Batasang Bayan (legislative council) created under Presidential
Decree 995 of September 10, 1976, composed of 19 cabinet members, 9 officials with cabinet
rank, 91 members of the Lupong Tagapagpaganap (executive committee) of the Katipunan ng
mga Sangguniang Bayan voted in session to submit directly to the people in a plebiscite on
October 16, the previously quoted proposed amendments to the Constitution, including the
issue of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the
President the submission of the proposed amendments to the people on October 16. All the
foregoing led the President to initiate the proposal of amendments to the Constitution and the
subsequent issuance of Presidential Decree No, 1033 on September 22, 1976 submitting the
questions (proposed amendments) to the people in the National Referendum-Plebiscite on
October 16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all
government authority emanates from them .30 In its fourth meaning, Savigny would treat people
as "that particular organized assembly of individuals in which, according to the Constitution, the
highest power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is sovereign 32 In consequence, the people may
thus write into the Constitution their convictions on any subject they choose in the absence of
express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an
experiment, as all life is all experiment." 34 "The necessities of orderly government," wrote
Rottschaefer, "do not require that one generation should be permitted to permanently fetter all
future generations." A constitution is based, therefore, upon a self-limiting decision of the people
when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and
the question of martial law in a referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President. Indeed, it may well be said that
the amending process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial
law to be continued? - is a referendum question, wherein the 15-year olds may participate. This
was prompted by the desire of the Government to reach the larger mas of the people so that
their true pulse may be felt to guide the President in pursuing his program for a New Order. For
the succeeding question on the proposed amendments, only those of voting age of 18 years
may participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the
new Constitution. 36 On this second question, it would only be the votes of those 18 years old
and above which will have valid bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the plebiscite question does not
infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a
given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds
above) is readily dispelled by the provision of two ballot boxes for every barangay center, one
containing the ballots of voters fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen
years and above contained in another ballot box. And, the results of the referendum-plebiscite
shall be separately prepared for the age groupings, i.e., ballots contained in each of the two
boxes.38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is

merely consultative in character. It is simply a means of assessing public reaction to the given
issues submitted to the people foe their consideration, the calling of which is derived from or
within the totality of the executive power of the President. 39 It is participated in by all citizens
from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex-
convicts .40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of the
Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who
shall have resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months preceding the election Literacy, property or any other substantive
requirement is not imposed. It is generally associated with the amending process of the
Constitution, more particularly, the ratification aspect.

VII

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in
main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, 41 is impressed with a mild character recorded no State
imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on
certain grounds no total suppression of that liberty is aimed at. The for the referendum-plebiscite
on October 16 recognizes all the embracing freedoms of expression and assembly The
President himself had announced that he would not countenance any suppression of dissenting
views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine
sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found their way to
the public forums, voicing out loud and clear their adverse views on the proposed amendments
and even (in the valid ratification of the 1973 Constitution, which is already a settled
matter.43 Even government employees have been held by the Civil Service Commission free to
participate in public discussion and even campaign for their stand on the referendum-plebiscite
issues.44

VIII

Time for deliberation

 is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free
debates or discussions on the referendum-plebiscite issues. The questions are not new. They
are the issues of the day. The people have been living with them since the proclamation of
martial law four years ago. The referendums of 1973 and 1975 carried the same issue of martial
law. That notwithstanding, the contested brief period for discussion is not without counterparts in
previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case,
recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive
issues of the Official Gazette of the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to
append as ordinance the complicated Tydings-Kocialskowski was published in only three
consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com.
Act 492). For the 1940 Constitutional amendments providing for the bicameral Congress, the
reelection of the President and Vice President, and the creation of the Commission on
Elections, 20 days of publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity Amendment, an involved constitutional amendment affecting
the economy as well as the independence of the Republic was publicized in three consecutive
issues of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)."45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific
date when the plebiscite shall be held, but simply states that it "shall be held not later than three
months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United
States Supreme court held that this matter of submission involves "an appraisal of a great
variety of relevant conditions, political, social and economic," which "are essentially political and
not justiciable." The constituent body or in the instant cases, the President, may fix the time
within which the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that
they are not to be widely separated in time; second, it is only when there is deemed to be a
necessity therefor that amendments are to be proposed, the reasonable implication being that
when proposed, they are to be considered and disposed of presently, and third, ratification is
but the expression of the approbation of the people, hence, it must be done
contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed
today has relation to the sentiment and the felt needs of today, and that, if not ratified early while
that sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again
to be voted upon, unless a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?

2. During the present stage of the transition period, and under, the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution
as well as set up the required machinery and prescribe the procedure for the ratification of his
proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of the view that the question posed is justiciable,
while Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the
view that the question is political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices
Teehankee and Munoz Palma voted in the negative. Associate Justice Fernando, conformably
to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA 183), specifically
dissents from the proposition that there is concentration of powers in the Executive during
periods of crisis, thus raising serious doubts as to the power of the President to propose
amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court, Associate Justice Fernando adheres to
his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC (21
SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the
President's lack of authority to exercise the constituent power to propose the amendments, etc.,
as above stated, there is no fair and proper submission with sufficient information and time to
assure intelligent consent or rejection under the standards set by this Court in the controlling
cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion
Jr. and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his
separate opinion, Associate Justice Fernando concurs in the result. Associate Justices
Teehankee and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds advanced be the
Solicitor General in opposition thereto, as well as the arguments adduced by the counsels of the
parties at the hearing had on October 7 and 8, 1976, three vital issues readily project
themselves as the centers of controversy, namely:
(1) Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?

(2) During the present stage of the transition period, and under the environmental
circumstances now obtaining, does the President possess power to propose amendments to the
Constitution as well as set up the required machineries and prescribe the procedure for the
ratification of his proposals by the people?

(3) Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper, submission"

First Issue

The threshold question is not at all one of first impression Specifically on the matter of proposals
to amend the Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively
announced the dictum that-

Proposal to amend the Constitution is a highly political function performed by the

Congress in its sovereign legislative capacity and committed to its charges by the
Constitution itself. The exercise of this power is even independent of any
intervention by the 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 than into that of a
ratification.

In time, however, the validity of the said pronouncement was eroded. In the assessment of the
Court itself-

The force of this precedent has been weakened, however, by Suanes vs. Chief Accountant of
the Senate (81 Phil. 818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs.
Cuenco (L-10520, February 28, 1957), and Macias vs. Commission on Elections (L-18684,
September 14, 1961).

x x x           x x x          x x x

In short, the issue whether or not a Resolution of Congress-acting as a constituent assembly-

violates the Constitution is essentially justiciable, not political, and, hence, subject to judicial
review, and, to the extent this view may be inconsistent with the stand taken in Mabanag vs.
Lopez Vito the latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point." (Gonzales vs. Commission on Elections, et al, L-28196, November 9,
1967, 21 SCRA 774, 786-787).

The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been completed
when, in Javellana vs. Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of
the Court concurred in the view that the question of whether the 1973 Constitution was ratified
in accordance with the provisions of Article XV (Amendments) of the 1935 Constitution is
inherently and essentially justiciable.
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103 Phil. 1051)-

... the term 'political question' connotes, in legal parlance, what it means in
ordinarily parlance, namely, a question of policy in matters concerning the
government of a State, as a body politic. In other words, in the language of
Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature
or executive branch of the government.' It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure.'

Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue
on whether or not the prescribed qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem being one of legality or validity
of the contested act, not its wisdom. Otherwise, said qualifications, conditions or limitations -
particularly those prescribed or imposed by the Constitution - would be set at naught."
(Javellana vs. Executive Secretary, supra).

So it is in the situation here presented. The basic issue is the constitutional validity of the
presidential acts of proposing amendments to the Constitution and of calling a referendum-
plebiscite for the ratification of the proposals made. Evidently, the question does not concern
itself with the wisdom of the exercise of the authority claimed or of the specific amendments
proposed. Instead the inquiry vel non is focused solely on the existence of the said power in the
President - a question purely of legality determinable thru interpretation and construction of the
letter and spirit of the Constitution by the Court as the final arbiter in the delineation of
constitutional boundaries and the allocation of constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially in these parlous
years, would be to abdicate its constitutional powers, shirk its constitutional responsibility, and
deny the people their ultimate recourse for judicial determination.

I have thus no hesitancy in concluding that the question here presented is well within the
periphery of judicial inquiry.

II

Second Issue

The main question stands on a different footing; it appears unprecedented both here and
elsewhere. Its solution, I believe, can be found and unraveled only by a critical assessment of
the existing legal order in the light of the prevailing political and factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the proposition that,

normally or under normal conditions, a Constitution may be amended only in accord with the
procedure set forth therein. Hence, if there be any such prescription for the amendatory process
as invariable there is because one of the essential parts of a Constitution is the so-called
"constitution of sovereignty" which comprises the provision or provisions on the modes in
accordance with which formal changes in the fundamental law may be effected the same would
ordinarily be the controlling criterion for the validity of the amendments sought.
Unfortunately, however, during the present transition period of our political development, no
express provision is extant in the Constitution regarding the agency or agent by whom and the
procedure by which amendments thereto may be proposed and ratified fact overlooked by those
who challenge the validity of the presidential acts in the premises. This is so because there are
at least two distinctly in the transition from the old system of government under the 1935
Constitution to the new one established by the 1973 Constitution.

The first stage comprises the period from the effectivity of the Constitution on January 17, 1973
to the time the National Assembly is convened by the incumbent President and the interim
President and the interim Prime Minister are chosen Article XVII, Sections 1 and 3[1]. The
existence of this stage as an obvious fact of the nation's political life was recognized by the
Court in Aquino vs. Commission on Elections, et al. (L-40004, January 31, 1975, 62 SCRA 275),
when it rejected the claim that, under the 1973 Constitution, the President was in duty bound to
convene the interim National Assembly soon after the Constitution took effect.

The second stage embraces the period from the date the interim National Assembly is
convened to the date the Government described in Articles VII to IX of the Constitution is
inaugurated, following the election of the members of the regular National Assembly (Article
XVII, Section 1) and the election of the regular President and Prime Minister,. This is as it
should be because it is recognized that the President has been accorded the discretion to
determine when he shall initially convene the interim National Assembly, and his decision to
defer the convocation thereof has found overwhelming support by the sovereign people in two
previous referenda, therein giving reality to an interregnum between the effectivity of the
Constitution and the initial convocation of the interim National Assembly, which interregnum, as
aforesaid, constitutes the first stage in the transition period.

Against this factual backdrop, it is readily discernible that neither of the two sets of provisions
embodied in the Constitution on the amendatory process applied during the said first stage.
Thus, Section 15, Article XVII (Transitory Provisions) provides-

"Sec. 15. The interim National Assembly, upon special call by the interim Prime Minister, may,
by a majority vote of all its Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance with Article Sixteen hereof."

Patently, the reference to the "interim National Assembly" and the "interim Prime Minister" limits
the application thereof to the second stage of the transition period, i.e.,., after the interim?
National Assembly shall have been convened and the interim Prime Minister shall have been
chosen.

Upon the other hand, the provisions of Article XVI (Amendments), to wit-

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the National Assembly upon a vote of three-fourths of all its
Members, or by a constitutional convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of ceiling such a convention to the electorate in an election.
 SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later
than three months after the approval of such amendment or revision.

unequivocally contemplate amendments after the regular Government shall have become fully
operative, referring as they do to the National Assembly which will come into being only at that
time.

In the face of this constitutional hiatus, we are confronted with the dilemma whether
amendments to the Constitution may be effected during the aforesaid first stage and, if in the
affirmative, by whom and in what manner such amendments may be proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not being a mere
declaration of the traditions of a nation but more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable. They are, instead, dynamic precepts intended to
keep in stride with and attuned to the living social organism they seek to fashion and govern. If it
is conceded that "the political or philosophical aphorism of one generation is doubted by the
next and entirely discarded by the third," then a Constitution must be able to adjust to the
changing needs and demands of society so that the latter may survive, progress and endure.
On these verities, there can be no debate.

During the first stage of the transition period in which the Government is at present - which is
understandably the most critical - the need for change may be most pressing and imperative,
and to disavow the existence of the right to amend the Constitution would be sheer political
heresy. Such view would deny the people a mechanism for effecting peaceful change, and belie
the organic conception of the Constitution by depriving it of its means of growth. Such a result
obviously could not have been intended by the framers of the fundamental law.

It seems, however, that the happenstance that the first period would come to pass before the
convocation of the interim National Assembly was not anticipated, hence, the omission of an
express mandate to govern the said situation in so far as amendments are concerned. But such
omission through inadvertence should not, because it cannot, negate the sovereign power of
the people to amend the fundamental charter that governs their lives and their future and
perhaps even the very survival of the nation.

Upon the other hand, it is clear from the afore-quoted provisions on the amendatory process
that the intent was, instead, to provide a simpler and more expeditious mode of amending the
Constitution during the transition period. For, while under Article XVI thereof, proposals for
amendment may be made directly by the regular National Assembly by a vote of at least three-
fourths of all its members, under Section 15 of Article XVII, a bare majority vote of all the
members of the National Assembly would suffice for the purpose. The relaxation and the
disparity in the vote requirement are revealing. The can only signify a recognition of the need to
facilitate the adoption of amendments during the second stage of the transition period so that
the interim National Assembly will be able, in a manner of speaking, to iron out the kinks in the
new Constitution, remove imperfections therein, and provide for changed or changing
circumstances before the establishment of the regular Government. In this contest, therefore, it
is inutile speculation to assume that the Constitution was intended to render impotent or ar the
effectuation of needful change at an even more critical period - the first stage. With greater
reason, therefore, must the right and power to amend the Constitution during the first stage of te
transition period be upheld, albeit within its express and implied constraints.
Neither can it be successfully argued, in the same context and in the present posture, that the
Constitution may be amended during the said first stage only by convening the interim National
Assembly. That is to say and require that he said stage must first be brought to an end before
any amendment may be proposed and ratified. Settled jurisprudence does not square with such
a proposition. As aptly noted in Aquino vs. Commission on Elections, et al., supra, the framers
of the Constitution set no deadline for the convening of the interim National Assembly because
they could not have foreseen how long the crises which impelled the proclamation and justify
the continued state of martial law would last. Indeed, the framers committed to the sound
judgment is not subject to judicial review, save possibly to determine whether arbitrariness has
infected such exercise; absent such a taint, the matter is solely in the keeping of the President.
To thus content that only by convening the interim National Assembly may the Constitution be
amended at this time would effectively override the judgement vested in the President, even in
default of any he has acted arbitrarily or gravely abuse his discretion. Furthermore, to sustain
such a contention would not only negate the mandate so resoundingly expressed by the people
in two national referenda against the immediate convening of the interim National Assembly, but
as well deride their overwhelming approval of the manner in which the President has exercised
the legislative power to issue proclamations, orders, decrees and instructions having the stature
and force of law.

Given the constitutional stalemate or impasse spawned by these supervening developments,

the logical query that compels itself for resolution is: By whom, then, may proposals for the
amendment of the Constitution be made and in what manner may said proposals be ratified by
the people?

It is conventional wisdom that, conceptually, the constituent power is not to be confuse with
legislative power in general because the prerogative to propose amendments to the Constitution
is not in any sense embraced within the ambit of ordinary law-making. Hence, there is much to
recommend the proposition that, in default of an express grant thereof, the legislature -
traditionally the delegated repository thereof - may not claim it under a general grant of
legislative authority. In the same vein, neither would it be altogether unassailable to say that
because by constitutional tradition and express allocation the constituent power under the
Constitution is locate in the law-making agency and at this stage of the transition period the law-
making authority is firmly recognized as being lodged in the President, the said constituent
power should now logically be in the hands of te President who may thus exercise it in place of
the interim National Assembly. Instead,, as pointed out in Gonzales vs. Commission on
Elections, et al., supra, the power to amend the Constitution or to propose amendments thereto

... is part of the inherent powers of the people - as the repository of sovereignty in
a republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either directly by themselves
or through their chosen delegate, can wield. Since it has been shown that the people,
inadvertently or otherwise, have not delegated that power to inadvertently or otherwise, have
not delegated that power to any instrumentality during the current stage of our hegira from crisis
to normalcy, it follows of necessity that the same remains with them for them to exercise in the
manner they see fit and through the agency they choose. And, even if it were conceded that - as
it is reputedly the rule in some jurisdictions - a delegation of the constituent authority amounts to
a complete divestiture from the people of the power delegated which they may not thereafter
unilaterally reclaim from the delegate, there would be no violence donde to such rule, assuming
it to be applicable here, inasmuch as that power, under the environmental circumstance
adverted to, has not been delegated to anyone in the first place. The constituent power during
the first stage of the transition period belongs to and remains with the people, and accordingly
may be exercised by them - how and when - at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment in the country
proves revelatory. The people, shocked and revolted by the "obvious immorality" of the
unabashed manner by which the delegates to the Constitutional Convention virtually legislated
themselves into office as ipso facto members of the interim National Assembly by the mere fiat
of voting for the transitory provisions of the Constitution. and the stark reality that the unwieldy
political monstrosity that the interim Assembly portended to be would have proven to be a
veritable drain on the meager financial resources of a nation struggling for survival, have
unequivocally put their foot down, as it were, on the convocation thereof. But this patently
salutary decision of the people proved to be double-edged. It likewise bound the political
machinery of the Government in a virtual straight-jacket and consigned the political evolution of
the nation into a state of suspended animation. Faced with the ensuing dilemma, the people
understandably agitated for a solution. Through consultations in the barangays and sanggunian
assemblies, the instrumentalities through which the people's voice is articulated in the unique
system of participatory democracy in the country today, the underpinnings for the hastening of
the return to constitutional normalcy quickly evolved into an overwhelming sentiment to amend
the Constitution in order to replace the discredited interim National Assembly with what the
people believe will be an appropriate agency to eventually take over the law-making power and
thus pave the way for the early lifting of martial rule. In pursuit of this sentiment, and to translate
its constraints into concrete action, the Pambansang Katipunan ng Barangay, the Pambansang
Katipunan ng mga Kabataang Barangay, the Lupong Tagapagpaganap of the Katipunan ng
mga Barangay, the Pambansang Katipunan ng mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, and finally the Batasang Bayan, to a
man and as one voice, have come forward with definitive proposals for the amendment of the
Constitution, and, choosing the President the only political arm of the State at this time through
which that decision could be implemented and the end in view attained as their spokesman,
proposed the amendments under challenge in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the proposals now
submitted to the people for their ratification in the forthcoming referendum-plebiscite are
factually not of the President; they are directly those of the people themselves speaking thru
their authorized instrumentalities. The President merely formalized the said proposals in
Presidential Decree No. 1033. It being conceded in all quarters that sovereignty resides in the
people and it having been demonstrated that their constituent power to amend the Constitution
has not been delegated by them to any instrumentality of the Government during the present
stage of the transition period of our political development, the conclusion is ineluctable that their
exertion of that residuary power cannot be vulnerable to any constitutional challenge as being
ultra vires. Accordingly, without venturing to rule on whether or not the President is vested with
constituent power as it does not appear necessary to do so in the premises the proposals here
challenged, being acts of the sovereign people no less, cannot be said to be afflicted with
unconstitutionality. A fortiori, the concomitant authority to call a plebiscite and to appropriate
funds therefor is even less vulnerable not only because the President, in exercising said
authority has acted as a mere alter ego of the people who made the proposals, but likewise
because the said authority is legislative in nature rather than constituent.

III
 Third Issue

Little need be said of the claimed insufficiency and impropriety of the submission of the
proposed amendments for ratification from the standpoint of time. The thesis cannot be disputed
that a fair submission presupposes an adequate time lapse to enable the people to be
sufficiently enlightened on the merits or demerits of the amendments presented for their
ratification or rejection. However, circumstances there are which unmistakably demonstrated
that the is met. Even if the proposal appear to have been formalized only upon the promulgation
of Presidential Decree No. 1033 on September 22, 1976, they are actually the crystallization of
sentiments that for so long have preoccupied the minds of the people and their authorized
representatives, from the very lowest level of the political hierarchy. Hence, unlike proposals
emanating from a legislative body, the same cannot but be said to have been mulled over,
pondered upon, debated, discussed and sufficiently understood by the great masses of the
nation long before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so distant past
when the 1973 Constitution was submitted to the people for ratification, an all-out campaign, in
which all the delegates of the Constitutional Convention reportedly participated, was launched to
acquaint the people with the ramifications and working of the new system of government sought
to be inaugurated thereunder. It may thus well be assumed that the people in general have
since acquired, in the least, a working knowledge of the entirety of the Constitution. The
changes now proposed the most substantial of which being merely the replacement of the
interim National assembly with another legislative arm for the Government during the transition
period until the regular National Assembly shall have been constituted do not appear to be of
such complexity as to require considerable time to be brought home to the full understanding of
the people. And, in fact, the massive and wide-ranging informational and educational campaign
to this end has been and still is in full swing, with all the media the barangay, the civic and
sectoral groups, and even the religious all over the land in acting and often enthusiastic if not
frenetic involvement.

Indeed, when the people cast their votes on October 16, a negative vote could very well mean
an understanding of the proposals which they reject; while an affirmative vote could equally be
indicative Of such understanding and/or an abiding credence in the fidelity with which the
President has kept the trust they have confided to him as President and administrator of martial
rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass judgment upon is
posed. Accordingly, I vote for the outright dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v. Commission on
Elections continuing with the epochal resolution in Javellana v. Executive Secretary and
followed successively in three crucial decisions, Aquino v. Ponce Enrile Aquino v. Commission
on Elections, and Aquino v Military Commission,5 manifest to the same degree the delicate and
awesome character of the function of judicial review. While previous rulings supply guidance
and enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of altered
circumstances and the urgencies of the times. It is inappropriate to resolve the complex
problems of a critical period without full awareness of the consequences that flow from whatever
decision is reached. Jural norms must be read in the context of social facts, There is need
therefore of adjusting inherited principles to new needs. For law, much more so constitutional
law, is simultaneously a reflection of and a force in the society that it controls. No quality then
can be more desirable in constitutional adjudication than that intellectual and imaginative insight
which goes into the heart of the matter. The judiciary must survey things as they are in the light
of what they must become It must inquire into the specific problem posed not only in terms of
the teaching of the past but also of the emerging political and legal theory, especially so under a
leadership notable for its innovative approach to social problems and the vigor of its
implementation. This, on the one side. It must equally be borne in mind through that this Court
must be conscious of the risk inherent in its being considered as a mere subservient instrument
of government policy however admittedly salutary or desirable. There is still the need to
demonstrate that the conclusion reached by it in cases appropriate for its determination has
support in the law that must be applied. To my mind that was the norm followed, the conclusion
reached being that the three petitions be dismissed. I am in agreement. It is with regret however
that based on my reading of past decisions, both Philippine and American, and more specifically
my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the proposition set forth in
the able and scholarly opinion of Justice Martin that there is concentration of power in the
President during a crisis government. Consequently, I cannot see my way clear to accepting the
view that the authority to propose amendments is not open to question. At the very least,
serious doubts could be entertained on the matter.

1. With due respect then, I have to dissociate myself from my brethren who would rule that
governmental powers in a crisis government, following Rossiter, "are more or less concentrated
in the President." Adherence to my concurring and dissenting opinion in Aquino v. Ponce Enrile
leaves me no choice.

It must be stated at the outset that with the sufficiency of doctrines supplied by our past
decisions to point the way to what I did consider the appropriate response to the basic issue
raised in the Aquino and the other habeas corpus petitions resolved jointly, it was only in the
latter portion of my opinion that reference was made to United States Supreme Court
pronouncements on martial law, at the most persuasive in character and rather few in number
"due no doubt to the, absence in the American Constitution of any provision concerning it." 7 It
was understandable then that it was only after the landmark Ex parte Milligan case, that
commentators like Cooley in 1868 and Watson in 1910 paid attention, minimal by that, to the
subject." It was next set forth that in the works on American constitutional law published in this
century specially after the leading cases of cases Sterling v. Constant in and Duncan v.
Kahanamoku, "there was a fuller treatment of the question of martial law While it is the
formulation of Willoughby that for me is most acceptable, my opinion did take note that another
commentator, Burdick, came out earlier with a similar appraisal. 10 Thus: "So called martial law,
except in occupied territory of an enemy is merely the calling in of the aid of military forces by
the executive, who is charged with the enforcement of the law, with or without special
authorization by the legislature. Such declaration of martial law does not suspend the civil law,
though it may interfere with the exercise of one's ordinary rights. The right to call out the military
forces to maintain order and enforce the law is simply part of the Police power, It is only justified
when it reasonably appears necessary, and only justifies such acts as reasonably appear
necessarily to meet the exigency, including the arrest, or in extreme cases the. killing of those
who create the disorder or oppose the authorities. When the exigency is over the members of
the military forces are criminally and civilly habit for acts done beyond the scope of reasonable
necessity. When honestly and reasonably coping with a situation of insurrection or riot a
member of the military forces cannot be made liable for his acts, and persons reasonably
arrested under such circumstances will not, during the insurrection or riot, be free by writ of
habeas corpus." 11 When the opinion cited Willoughby's concept of martial law, stress was laid
on his being "Partial to the claims of liberty."12 This is evident in the explicit statement from his
work quoted by me: "There is, then, strictly speaking, no such thing in American law as a
declaration of martial law whereby military law is substituted for civil law. So-called declarations
of martial law are, indeed, often made but their legal effect goes no further than to warn citizens
that the military powers have been called upon by the executive to assist him in the
maintenance of law and order, and that, while the emergency lasts, they must, upon pain of
arrest and punishment not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law. Some of the authorities stating substantially this
doctrine are quoted in the footnote below Nor did I stop there. The words of Willis were likewise
cited: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not
a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of
martial law go no further than to warn citizens that the executive has called upon the military
power to assist him in the maintenance of law and order. While martial law is in force, no new
powers are given to the executive and no civil rights of the individual, other than the writ of
habeas corpus, are suspended. The relations between the citizen and his stature unchanged."14

The conclusion reached by me as to the state of American federal law on the question of martial
law was expressed thus: 4'1 It is readily evident that even when Milligan supplied the only
authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties. Willis
wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan,
such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest
to be published, has this summary of what he considers the present state of American law: 'The
Milligan and Duncan cases show plainly that martial law is the public law of necessity.
Necessities alone calls it forth, necessity justifies its exercise; and necessities measures the
extended degree to which it may be It is, the high Court has affirmed, an unbending rule of law
that the exercise of military power, where the rights of the citizen are concerned, may, never be
pushed beyond what the exigency requires. If martial law rule survive the necessities on which
alone it rests, for even a single minute it becomes a mere exercise of lawless violence.' Further:
Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one the
highest Court, went or on the theory that the executive had a free hand in taking martial law
measures. Under them, it has been widely supposed that in proclamation was so far conclusive
that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely
discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under
Sterling v. Constantin, where martial law measures impinge upon personal or property rights-
normally beyond the scope of military power, whose intervention is lawful only because an
abnormal Actuation has made it necessary the executive's ipse dixit is not of itself conclusive of
the necessity.'"15

There was likewise an effort on my part to show what for me is the legal effect of martial law
being expressly provided for in the Constitution rather than being solely predicated on the
common law power based on the urgent need for it because of compelling circumstances
incident to the state of actual clash of arms: "It is not to be lost sight of that the basis for the
declaration of martial law in the Philippines is not mere necessity but an explicit constitutional
provision. On the other hand, Milligan, which furnished the foundation for Sterling and Duncan
had its roots in the English common law. There is pertinence therefore in ascertaining its
significance under that system. According to the noted English author, Dicey: 'Martial law,' in the
proper sense of that term, , in which - it means the suspension of ordinary law and the
temporary government of a country or parts of it be military tribunals, is unknown to the law of
England. We have nothing equivalent to what is called in France the "Declaration of the State of
Siege," under which the authority ordinarily vested in the civil power for the maintenance of
order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of
the permanent supremacy of the law under our constitution. There was this qualification: 'Martial
law is sometimes employed as a name for the common law right of the Crown and its servants
to repel force by force in the case of invasion, insurrection, riot, or generally of any violent
resistance to the law. This right, or power, is essential to the very existence of orderly
government, and is most assuredly recognized in the most ample manner by the law of
England. It is a power which has in itself no special connection with the existence of an armed
force. The Crown has the right to put down breaches of the peace. Every subject, whether a
civilian or a soldier, whether what is called a servant of the government,' such for example as a
policeman, or a person in no way connected with the administration, not only has the right, but
is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt
policemen or soldiers are the persons who, as being specially employed in the maintenance of
order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are
bound to take their part in the suppression of riots."16

Commitment to such an approach results in my inability to subscribe to the belief that martial
law in terms of what is provided both in the 1935 and the present Constitution, affords sufficient
justification for the concentration of powers in the Executive during periods of crisis. The better
view, considering the juristic theory on which our fundamental law rests is that expressed by
Justice Black in Duncan v. Kahanamoku: "Legislatures and courts are not merely cherished
American institutions; they are indispensable to our government. 17 If there has been no
observance of such a cardinal concept at the present, it is due to the fact that before the former
Congress could meet in regular session anew, the present Constitution was adopted, abolishing
it and providing for an interim National Assembly, which has not been convened. 18 So I did view
the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was made to the
first chapter on his work on Constitutional Dictatorship where he spoke of martial rule as "a
device designed for use in the crisis of invasion or rebellion. It may be most precisely defined as
an extension of military government to the civilian population, the substitution of the will of a
military commander for the will of the people's elected government." 19 Since, for me at least, the
Rossiter characterization of martial law has in it more of the common law connotation, less than
duly mindful of the jural effects of its inclusion in the Constitution itself as a legitimate device for
coping with emergency conditions in times of grave danger, but always subject to attendant
limitations in accordance with the fundamental postulate of a charter's supremacy, I felt justified
in concluding: "Happily for the Philippines, the declaration of martial law lends itself to the
interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to
the primacy of liberty possess relevance. lt cannot be said that the martial rule concept of
Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be
reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly
maintained that Proclamation No. 1081 was precisely based on the Constitution and that the
validity of acts taken there under could be passed upon by the Supreme court. For me that is
quite reassuring, persuaded as I am likewise that the week- of Rossiter is opposed to the
fundamental concept of our polity, which puts a premium on freedom."20

3. Candor and accuracy compel the admission that such a conclusion his to be qualified. For in
the opinion of the Court in the aforecited Aquino v. Commission on Elections, penned by Justice
Makasiar, the proposition was expressly affirmed "that as Commander-in-Chief and enforcer or
administrator of martial law, the incumbent President of the Philippines can reclamations, orders
and decrees during the period Martial Law essential to the security and preservation of the
Republic, to the defense of the political and social liberties of the people and to the institution of
reforms to prevent the resurgence of rebellion or insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide recession, inflation or economic crisis which
presently threatens all nations including highly developed countries." 21 To that extent, Rossiter's
view mainly relied upon, now possesses Juristic significant in this jurisdiction. What, for me at
least, gives caused for concern is that with the opinion of the Court this intrusion of what I would
consider an alien element in the limited concept of martial law as set forth in the Constitution
would be allowed further incursion into the corpus of the law, with the invocation of the view
expressed in the last chapter of his work approving tile "concentration of governmental power in
a democracy [as] a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers." 22 It is to the credit of the late Professor Rossiter as an objective scholar
that in the very same last chapter, just three pages later, he touched explicitly on the
undesirable aspect of a constitutional dictatorship. Thus: "Constitutional Dictatorship is a
dangerous thing. A declaration of martial law or the passage of an enabling act is a step which
must always be feared and sometimes bitterly resisted, for it is at once an admission of the
incapacity of democratic institutions to defend the order within which they function and a too
conscious employment of powers and methods long ago outlawed as destructive of
constitutional government. Executive legislation, state control of popular liberties, military courts,
and arbitrary executive action were governmental features attacked by the men who fought for
freedom not because they were inefficient or unsuccessful, but because they were dangerous
and oppressive. The reinstitution of any of these features is a perilous matter, a step to be taken
only when the dangers to a free state will be greater if the dictatorial institution is not adopted."23

4. It is by virtue of such considerations that I find myself unable to share the view of those of my
brethren who would accord recognition to the Rossiter concept of concentration of governmental
power in the Executive during periods of crisis. This is not to lose sight of the undeniable fact
that in this country through the zeal, vigor, and energy lavished on projects conducive to the
general welfare, considerable progress has been achieved under martial rule. A fair summary
may be found in a recent address of the First Lady before the delegates to the 1976
international Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much
has been done in so brief a time. Since September 1972, when President Marcos established
the crisis government, peace and order have been restored in a country once avoided as one of
the most unsafe in the world. We have liberated millions of Filipino farmers from the bondage of
tenancy, in the most vigorous and extensive implementation of agrarian reform." 24 Further, she
said: "A dynamic economy has replaced a stagnant order, and its rewards are distributed
among the many, not hoarded by a few. Our foreign policy, once confined by fear and suspicion
to a narrow alley of self-imposed isolation, now travels the broad expressways of friendship and
constructive interaction with the whole world, these in a new spirit of confidence and self-
reliance. And finally, forced to work out our own salvation, the Filipino has re-discovered the
well-springs of his strength and resilience As Filipinos, we have found our true Identity. And
having broken our crisis of Identity, we are no longer apologetic and afraid. "25 The very Idea of
a crisis, however, signifies a transitory, certainly not a permanent, state of things. President
Marcos accordingly has not been hesitant in giving utterance to his conviction that full
implementation of the modified parliamentary system under the present Constitution should not
be further delayed. The full restoration of civilian rule can thus be expected. That is more in
accord with the imperatives of a constitutional order. It should not go unnoticed either that the
President has referred to the present regime as one of "constitutional authoritarianism." That
has a less objectionable ring, authority being more Identified with the Idea of law, as based on
right, the very antithesis of naked force, which to the popular mind is associated with
dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the opinion of the Court,
while no doubt a partisan of d strong Presidency, was not averse to constitutional restraints
even during periods of crisis. So I would interpret this excerpt from the fourth edition of his
classic treatise on the Presidency: "A regime of martial law may be compendiously, if not
altogether accurately, defined as one in which the ordinary law, as administered by the ordinary
courts, is superseded for the time being by the will of a military commander. It follows that, when
martial law is instituted under national authority, it rests ultimately on the will of the President of
the United States in his capacity as Commander-in-Chief. It should be added at once,
nevertheless, that the subject is one in which the record of actual practice fails often to support
the niceties of theory. Thus, the employment of the military arm in the enforcement of the civil
law does not invariably, or even usually, involve martial law in the strict sense, for, as was noted
in the preceding section, soldiers are often placed simply at the disposal and direction of the
civil authorities as a kind of supplementary police, or posse comitatus on the other hand be
reason of the discretion that the civil authorities themselves are apt to vest in the military in any
emergency requiring its assistance, the line between such an employment of the military and a
regime of martial law is frequently any but a hard and fast one. And partly because of these
ambiguities the conception itself of martial law today bifurcates into two conceptions, one of
which shades off into military government and the other into the situation just described, in
which the civil authority remains theoretically in control although dependent on military aid.
Finally, there is the situation that obtained throughout the North during the Civil War, when the
privilege of the writ of habeas corpus was suspended as to certain classes of suspects,
although other characteristics of martial law were generally absent."26

It is by virtue of the above considerations that, with due respect to the opinion of my brethren, I
cannot yield assent to the Rossiter view of concentration of governmental powers in the
Executive during martial law.

5 There is necessity then, for me at least, that the specific question raised in all three petitions
be squarely faced. It is to the credit of the opinion of the Court that it did so. The basic issue
posed concerns the boundaries of the power of the President during this period of martial law,
more precisely whether it covers proposing amendments to the Constitution. There is the further
qualification if the stand of respondents be taken into account that the interim National
Assembly has not been convened and is not likely to be called into session in deference to the
wishes of the people as expressed in three previous referenda. It is the ruling of the majority
that the answer be in the affirmative, such authority being well within the area of presidential
competence. Again I find myself unable to join readily in that conviction. It does seem to me that
the metes and bounds of the executive domain, while still recognizable, do appear blurred. This
is not to assert that there is absolutely no basis for such a conclusion, sustained as it is by a
liberal construction of the principle that underlies Aquino v. Commission on Elections as to the
validity of the exercise of the legislative prerogative by the President as long as the interim
National Assembly is not For me, the stage of certitude has not been reached. I cannot simply
ignore the vigorous plea of petitioners that there is a constitutional deficiency consisting in the
absence of any constituent power on the part of the President, the express provision of the
Constitution conferring it on the by team National Assembly.27 The learned advocacy reflected in
the pleadings as well as the oral discourse of Solicitor General Estelito P. Mendoza 21 failed to
erase the grave doubts in my mind that the Aquino doctrine as to the possession of legislative
competence by the President during this period of transition with the interim lawmaking body not
called into session be thus expanded. The majority of my brethren took that step. I am not
prepared to go that far. I will explain why.

The way for me, is beset with obstacles. In the first place, such an approach would lose sight of
the distinction between matters legislative and constituent. That is implicit in the treatise on the
1935 Constitution by Justices Malcolm and Laurel In their casebook published the same year,
one of the four decisions on the subject of constitutional amendments is Ellingham v. Dye 31
which categorically distinguished between constituent and legislative powers. Dean Sinco, a
well-known authority on the subject, was quite explicit. Thus: "If there had been no express
provision in the Constitution granting Congress the power to propose amendments, it would be
outside its authority to assume that power. Congress may not claim it under the general grant of
legislative power for such grant does not carry with it the right 'to erect the state, institute the
form of its government,' which is considered a function inherent in the people. Congressional
law- making authority is limited to the power of approving the laws 'of civil conduct relating to the
details and particulars of the government instituted,' the government established by the
people."12 If that distinction be preserved, then for me the aforecited Aquino decision does not
reach the heart of the matter. Nor is this all. In the main opinion of Justice Makasiar as well as
that of the then Justice, now Chief Justice, Castro, support for the ruling that the President
cannot be deemed as devoid of legislative power during this transition stage is supplied by
implications from explicit constitutional provisions.13 That is not the case with the power to
propose amendments. It is solely the interim National Assembly that is mentioned. That is the
barrier that for me is well-nigh insurmountable. If I limit myself to entertaining doubts rather than
registering a dissent on this point, it is solely because of the consideration, possessed of weight
and significance, that there may be indeed in this far-from-quiescent and static period a need for
al. amendments. I do not feel confident therefore that a negative vote on my part would be
warranted. What would justify the step taken by the President, even if no complete acceptance
be accorded to the view that he was a mere conduit of the barangays on this matter, is that as
noted in both qualified concurrences by Justices Teehankee and Munoz Palma in Aquino, as far
as the legislative and appropriately powers are concerned, is the necessity that unless such
authority be recognized, there may be paralyzation of governmental activities, While not
squarely applicable, such an approach has, to my mind, a persuasive quality as far as the
power to propose amendments is concerned.

Thus I would confine myself to the expression of serious doubts on the question rather than a
dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in the result that the
petitions be dismissed. That is to accord respect to the principle that judicial review goes no
further than to checking clear infractions of the fundamental law, except in the field of human
rights where a much greater vigilance is required, That is to make of the Constitution a pathway
to rather than a barrier against a desirable objective. -As shown by my concurring and
dissenting opinion in Tolentino Commission on Elections '34 a pre-martial law decision, the
fundamental postulate that sovereignty resides in the people exerts a compelling force requiring
the judiciary to refrain as much as possible from denying the people the opportunity to make
known their wishes on matters of the utmost import for the life of the nation, Constitutional
amendments fall in that category. I am fortified in that conviction by the teaching of persuasive
American decisions There is reinforcement to such a conclusion from retired Chief Justice
Concepcion's concurring and dissenting opinion in Aytona v. Castillo,17 Which I consider
applicable to the present situation. These are his words: "It is well settled that the granting of
writs of prohibition and mandamus is ordinarily within the sound discretion of the courts, to be
exercised on equitable principles, and that said writs should be issued when the right to the
relief is clear * * by As he noted in his ponencia in the later case of Gonzales v. Hechanova,19
an action for prohibition, while petitioner was sustained in his stand, no injunction was issued.
This was evident in the dispositive portion where judgment was rendered "declaring that
respondent Executive Secretary had and has no power to authorize the importation in question;
that he exceeded his jurisdiction in granting said authority; that said importation is not
sanctioned by law and is contrary to its provisions; and that, for lack of the requisite majority, the
injunction prayed for must be and is, accordingly, denied." 40 With the illumination thus supplied,
it does not necessarily follow that even a dissent on my part would necessarily compel that I
vote for the relief prayed for. Certainly this is not to belittle in any way the action taken by
petitioners in filing these suits. That, for me, is commendable. It attests to their belief in the rule
of law. Even if their contention as to lack of presidential power be accepted in their entirety,
however, there is still discretion that may be exercised on the matter, prohibition being an
equitable remedy. There are, for me, potent considerations that argue against acceding to the
plea. With the prospect of the interim National Assembly being convened being dim, if not non-
existent, if only because of the results in three previous referenda, there would be no
constitutional agency other than the Executive who could propose amendments, which, as
noted. may urgently press for adoption. Of even greater weight, to my mind, is the
pronouncement by the President that the plebiscite is intended not only to solve a constitutional
anomaly with the country devoid of a legislative body but also to provide. the machinery be
which the termination of martial law could be hastened. That is a consummation devoutly to be
wished. That does militate strongly against the stand of petitioners. The obstruction they would
pose may be fraught with pernicious consequences. It may not be amiss to refer anew to what I
deem the cardinal character of the jural postulate explicitly affirmed in both the 1935 and the
present Constitutions that sovereignty resides in the people. So I made clear in Tolentino v.
Commission on Elections and thereafter in my dissent in Javellana v. The Executive Secretary"
and my concurrence in Aquino v. Commission on Elections. 42 The destiny of the country lies in
their keeping. The role of leadership is not to be minimized. It is crucial it is of the essence.
Nonetheless, it is their will, if given expression in a manner sanctioned by law and with due care
that there be no mistake in its appraisal, that should be controlling. There is all the more reason
then to encourage their participation in the power process. That is to make the regime truly
democratic. Constitutional orthodoxy requires, however, that the fundamental law be followed.
So I would interpret Laski, 43 Corwin, 44 Lerner,45, Bryn-Jones, 46 and McIver.47

7. There is reassurance in the thought that this Court has affirmed its commitment to the
principle that the amending process gives rise to a justiciable rather than a political question.
So, it has been since the leading case of Gonzales v. Commission on Election S. 48 It has since
then been followed in Tolentino v. Commission on Elections 49 Planas v. Commission on
Elections," and lastly, in Javellana v. The Executive Secretary This Court did not heed the
vigorous plea of the Solicitor General to resurrect the political question doctrine announced in
Mabanag v. Lopez Vito. 52 This is not to deny that the federal rule in the United States as set
forth in the leading case of Coleman v. Miller , 53 a 1939 decision, and relatively recent State
court decisions, supply ammunition to such a contention.,51 That may be the case in the United
States, but certainly not in this jurisdiction. Philippine constitutional tradition is to the contrary. It
can trace its origin to these words in the valedictory address before the 1934-35 Constitutional
Convention by the illustrious Claro M. Recto: "It is one of the paradoxes a democracy that the
people of times place more confidence in instrumentalities of the State other than those directly
chosen by them for the exercise of their sovereignty It can be said with truth, therefore, that
there has invariably been a judicial predisposition to activism rather than self-restraint. The
thinking all these years has been that it goes to the heart of constitutionalism. It may be said
that this Court has shunned the role of a mere interpreter; it did exercise at times creative
power. It has to that extent participated in the molding of policy, It has always recognized that in
the large and undefined field of constitutional law, adjudication partakes of the quality of
statecraft. The assumption has been that just because it cannot by itself guarantee the
formation, much less the perpetuation of democratic values or, realistically, it cannot prevail
against the pressure of political forces if they are bent in other directions. it does not follow that
it should not contribute its thinking to the extent that it can. It has been asked, it will continue to
be asked, to decide momentous questions at each critical stage of this nation's life.

There must be, however, this caveat. Judicial activism gives rise to difficulties in an era of
transformation and change. A society in flux calls for dynamism in "he law, which must be
responsive to the social forces at work. It cannot remain static. It must be sensitive to life. This
Court then must avoid the rigidity of legal Ideas. It must resist the temptation of allowing in the
wasteland of meaningless abstractions. It must face stubborn reality. It has to have a feel for the
complexities of the times. This is not to discount the risk that it may be swept too far and too fast
in the surge of novel concepts. The past too is entitled to a hearing; it cannot just be summarily
ignored. History still has its uses. It is not for this Court to renounce the virtue of systematic jural
consistency. It cannot simply yield to the sovereign sway of the accomplished fact. It must be
deaf to the dissonant dialectic of what appears to be a splintered society. It should strive to be a
factor for unity under a rule of law. There must be, on its part, awareness of the truth that a new
juridical age born before its appointed time may be the cause of unprecedented travail that may
not end at birth. It is by virtue of such considerations that I did strive for a confluence of principle
and practicality. I must confess that I did approach the matter with some misgivings and
certainly without any illusion of omniscience. I am comforted by the thought that immortality
does not inhere in judicial opinions. 8. 1 am thus led by my studies on the subject of
constitutional law and, much more so, by previous judicial opinions to concur in the dismissal of
the petitions. If I gave expression to byes not currently fashionable, it is solely due to deeply-
ingrained beliefs. Certainly, I am the first to recognize the worth of' the social and economic
reforms so needed by the troubled present that have been introduced and implemented. There
is no thought then of minimizing, much less of refusing to concede, the considerable progress
that has been made and the benefits that have been achieved under this Administration. Again,
to reiterate one of my cherished convictions, I certainly approve of the adherence to the
fundamental principle of popular sovereignty which, to be meaningful however, requires both
freedom in its manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting and
proper that a distinction was made between two aspects of the coming poll, the referendum and
the plebiscite. It is only the latter that is impressed with authoritative force. So the Constitution
requires. Lastly, there should be, as I did mention in my concurrence in Aquino v. Commission
on Elections,56 full respect for free speech and press, free assembly and free association.
There should be no thought of branding the opposition as the enemy and the expression of its
views as anathema, Dissent, it is fortunate to note, has been encouraged. It has not been
Identified with disloyalty. That ought to be the case, and not solely due to presidential decrees.
Constructive criticism is to be welcomed not so much because of the right to be heard but
because there may be something worth hearing. That is to ensure a true ferment of Ideas, an
interplay of knowledgeable minds. There are though well- defined limits, One may not advocate
disorder in the name of protest, much less preach rebellion under the cloak of dissent.. What I
mean to stress is that except on a showing of clear and present danger, there must be respect
for the traditional liberties that make a society truly free.

TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's dismissal of the petitions for lack of merit and vote
to grant the petitions for the following reasons and considerations: 1. It is undisputed that neither
the 1935 Constitution nor the 1973 Constitution grants to the incumbent President the
constituent power to propose and approve amendments to the Constitution to be submitted to
the people for ratification in a plebiscite. The 1935 Constitution expressly vests the constituent
power in Congress, be a three-fourths vote of all its members, to propose amendments or call a
constitutional convention for the purpose The 1973 Constitution expressly vests the constituent
power in the regular National Assembly to propose amendments (by a three-fourths vote of all
its members) or "call a constitutional convention" (by a two-thirds vote of all its members) or
"submit the question of calling such convention to the electorate in an election" (by a majority
vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the constituent power during
the period of transition in the interim National Assembly "upon special call be the Prime Minister
(the incumbent President 3)... by a majority ore of all its members (to) propose amendments."

Since the Constitution provides for the organization of the essential departments of government,
defines and delimits the powers of each and prescribes the manner of the exercise of such
powers, and the constituent power has not been granted to but has been withheld from the
President or Prime Minister, it follows that the President's questioned decrease proposing and
submitting constitutional amendments directly to the people (without the intervention of the
interim National Assembly in whom the power is expressly vested) are devoid of constitutional
and legal basis.

2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the case at bar In
therein declaring null and void the acts of the 1971 Constitutional Convention and of the
Comelec in calling a plebiscite with the general elections scheduled for November 8, 1971 for
the purpose of submitting for the people's ratification an advance amendment reducing the
voting age from 21 years to 18 years, and issuing writs of prohibition and injunction against the
holding of the plebiscite, this Court speaking through Mr. Justice Barredo ruled that --The
Constitutional provisions on amendments "dealing with the procedure or manner of amending
the fundamental law are binding upon the Convention and the other departments of the
government, (land) are no less binding upon the people

As long as an amendment is formulated and submitted under the aegis of the

present Charter, any proposal for such amendment which is not in conformity
with the letter, spirit and intent of the Charter for effecting amendments, cannot
receive the sanction of this Court ;8

The real issue here cannot be whether or not the amending process delineated by the present
Constitution may be disregarded in favor of allowing the sovereign people to express their
decision on the proposed amendments, if only because it is evident that the very Idea of
departing from the fundamental law is anachronistic in the realm of constitutionalism and
repugnant to the essence of the rule of law,"; 9 and

-Accordingly barred the plebiscite as improper and premature, since "the provisional nature of
the proposed amendments and the manner of its submission to the people for ratification or
rejection" did not "conform with the mandate of the people themselves in such regard, as
expressed in the Constitution itself', 10 i.e. the mandatory requirements of the amending
process as set forth in the Article on Amendments.
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis, it is clear that
where the proposed amendments are violative of the Constitutional mandate on the amending
process not merely for being a "partial amendment" of a "temporary or provisional character" (as
in Tolentino) but more so for not being proposed and approved by the department vested by the
Constitution with the constituent power to do so, and hence transgressing the substantive
provision that it is only the interim National Assembly, upon special call of the interim Prime
Minister, bu a majority vote of all its members that may propose the amendments, the Court
must declare the amendments proposals null and void.

4. This is so because the Constitution is a "superior paramount law, unchangeable by ordinary

means" 11 but only by the particular mode and manner prescribed therein by the people. As
stressed by Cooley, "by the Constitution which they establish, (the people) not only tie up the
hands of their official agencies but their own hands as well; and neither the officers of the State,
nor the whole people as an aggregate body, are at liberty to take action in opposition to this
fundamental law." 12

The vesting of the constituent power to propose amendments in the legislative body (the regular
National Assembly) or the interim National Assembly during the transition period) or in a
constitutional convention called for the purpose is in accordance with universal practice. "From
the very necessity of the case" Cooley points out "amendments to an existing constitution, or
entire revisions of it, must be prepared and matured by some body of representatives chosen
for the purpose. It is obviously impossible for the whole people to meet, prepare, and discuss
the proposed alterations, and there seems to be no feasible mode by which an expression of
their will can be obtained, except by asking it upon the single point of assent or disapproval."
This body of representatives vested with the constituent - power "submits the result of their
deliberations" and "puts in proper form the questions of amendment upon which the people are
to pass"-for ratification or rejection.13

5. The Court in Tolentino thus rejected the argument "that the end sought to be achieved is to
be desired" and in denying reconsideration in paraphrase of the late Claro M. Recto declared
that "let those who would put aside, invoking grounds at best controversial, any mandate of the
fundamental purportedly in order to attain some laudable objective bear in mind that someday
somehow others with purportedly more laudable objectives may take advantage of the
precedent and continue the destruction of the Constitution, making those who laid down the
precedent of justifying deviations from the requirements of the Constitution the victims of their
own folly."

This same apprehension was echoed by now retired Justice Calixto O. Zaldivar in his dissenting
opinion in the Ratification cases 14 that "we will be opening the gates for a similar disregard to
the Constitution in the future. What I mean is that if this Court now declares that a new
Constitution is now in force because the members of the citizens assemblies had approved said
new Constitution, although that approval was not in accordance with the procedure and the
requirements prescribed in the 1935 Constitution, it can happen again in some future time that
some amendments to the Constitution may be adopted, even in a manner contrary to the
existing Constitution and the law, and then said proposed amendments is submitted to the
people in any manner and what will matter is that a basis is claimed that there was approval by
the people. There will not be stability in our constitutional system, and necessarily no stability in
our government."
6. It is not legally tenable for the majority, without overruling the controlling precedent of
Tolentino (and without mustering the required majority vote to so overrule) to accept the
proposed; amendments as valid notwithstanding their being "not in conformity with the letter,
spirit and intent of the provision of the Charter for effecting amendments" on the reasoning that
"If the President has been legitimately discharging the legislative functions of the interim
National Assembly, there is no reason why he cannot validly discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking through now retired
Chief Justice Roberto Concepcion, pointer out that "Indeed, the power to Congress" 17 or to the
National Assembly.18 Where it not for the express grant in the Transitory Provisions of the
constituent power to the interim National Assembly, the interim National Assembly could not
claim the power under the general grant of legislative power during the transition period.

The majority's ruling in the Referendum cases19 that the Transitory Provision in section 3(2)
recognized the existence of the authority to legislate in favor of the incumbent President during
the period of martial law manifestly cannot be stretched to encompass the constituent power as
expressly vested in the interim National Assembly in derogation of the allotment of powers
defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the settled maxims of
constitutional law, 20 the contituent power has been lodged by the sovereign power of the people
with the interim National Assembly during the transition period and there it must remain as the
sole constitutional agency until the Constitution itself is changed.

As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of Angara vs. Electoral
Commissioner21, "(T)he Constitution sets forth in no uncertain language and restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by
which to direct the course of government along constitutional channels, for then the distribution
of powers sentiment, and the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution are real as they should be
in any living Constitution".

7. Neither is the justification of "constitutional impasses" tenable. The sentiment of the people
against the convening of the interim National Assembly and to have no elections for "at least
seven (7) years" Concededly could not ament the Constitution insofar as the interim National
Assembly is concerned (since it admittendly came into existence "immediately" upon the
proclamation of ratification of the 1973 Constitution), much less remove the constituent power
from said interim National Assembly.

As stressed in the writer's separate opinion in the Referendum cases 22, "(W)hile it has been
advanced that the decision to defer the initial convocation of the interim National Assembly was
supported by the results of the referendum in January, 1973 when the people voted against the
convening of the interim National Assembly for at least seven years, such sentiment cannot be
given any legal force and effect in the light of the State's admission at the hearing that such
referendums are merely consultative and cannot amend the Constitution or Provisions which
call for the 'immediate existence' and 'initial convening of the interim National Assembly to 'give
priority to measures for the orderly transition from the presidential to the parliamentary system'
and the other urgent measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the convening of the interim
National Assembly to dischange its legislative tasks during the period of transition under martial
law, they certainly had no opportunity and did not express themselves against convening the
interim National Assembly to discharge the constituent power to propose amendments likewise
vested in it by the people's mandate in the Constitution.

In point of fact, when the holding of the October 16, 1976 referendum was first announced, the
newspapers reported that among the seven questions proposed by the sanggunian and
barangay national executive committies for the referendum was the convening of the interim
National Assembly.23

It was further reported that the proposals which were termed tentative "will be discussed and
studied by (the President), the members of the cabinet, and the security council" and that the
barangays felt, notwithstanding the previous referenda on the convening of the interim National
Assembly that "it is time to again ask the people's opinion of this matter "24

8. If proposals for constitutional amendments are now deemed necessary to be discussed and
adopted for submittal to the people, strict adherence with the mandatory requirements of the
amending process as provided in the Constitution must be complied with. This means, under
the teaching of Tolentino that the proposed amendments must validly come from the
constitutional agency vested with the constituent power to do so, namely, the interim National
Assembly, and not from the executive power as vested in the Prime Minister (the incumbent
President) with the assistance of the Cabinet 25 from whom such power has been withheld.

It will not do to contend that these proposals represent the voice of the people for as was aptly
stated by Cooley "Me voice of the people, acting in their sovereign capacity, can be of legal
force only when expressed at the times and under the conditions which they themselves have
prescribed and pointed out by the Constitution. ... ."26

The same argument was put forward and rejected by this Court in Tolentino which rejected the
contention that the "Convention being a legislative body of the highest order (and directly
elected by the people to speak their voice) is sovereign, in as such, its acts impugned by
petitioner are beyond the control of Congress and the Courts" and ruled that the constitutional
article on the amending process" is nothing more than a part of the Constitution thus ordained
by the people. Hence, in continuing said section, We must read it as if the people said, "The
Constitution may be amended, but it is our will that the amendment must be proposed and
submitted to Us for ratification only in the manner herein provided'".27

This Court therein stressed that "This must be so, because it is plain to Us that the framers of
the Constitution took care that the process of amending the same should not be undertaken with
the same ease and facility in changing an ordinary legislation. Constitution making is the most
valued power, second to none, of the people in a constitutional democracy such as the one our
founding fathers have chosen for this nation, and which we of the succeeding generations
generally cherish. And because the Constitution affects the lives, fortunes, future and every
other conceivable aspect of the lives of all the people within the country and those subject to its
sovereignity, ever constitution worthy of the people for which it is intended must not be prepared
in haste without adequate deliberation and study. It is obvious that correspondingly, any
amendment of the Constitution is of no less importance than the whole Constitution itself, and
perforce must be conceived and prepared with as much care and deliberation;" and that "written
constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at
least, as long as they can be adopted to the needs and exigencies of the people, hence, they
must be insulated against precipitate and hasty actions motivated by more or less passing
political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations
and conditions, more or less stringent, made so by the people themselves, in regard to the
process of their amendment."28

9. The convening of the interim National Assembly to exercise the constituent power to
proposed amendments is the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in the setting as in
of a Comelec resolution banning the use of political taped jingles by candidates for
Constitutional Convention delegates int he special 1970 elections, "the concept of the
Constitution as the fundamental law, setting forth the criterion for the validity of any public act
whether proceeding from the highest official or the lowest functionary, is a postulate of our
system of government. That is to amnifst fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal heirarchy. The three departments of government in
the discharge of the functions with which it is entrusted have no choice but to yield obedience to
its commands. Whatever limits it imposes must be observed. Congress in the enactment of
statutes must ever be on guart lest the restrictions on its authority, whether substantive or
formal, be transcended. The Presidency in the execution of the laws cannot ignore of disregard
what it ordains. In its task of applying the law to the facts as found in deciding cases, the
judiciary is called upon the maintain inviolate what is decreed by the fundamental law."

This is but to give meaning to the plan and clear mandate of section 15 of the Transitory
Provisions (which allows of no other interpretation) that during the stage of transition the interim
National Assembly alone exercises the constituent power to propose amendments, upon special
call therefor. This is reinforced by the fact that the cited section does not grant to the regular
National Assembly of calling a constitutional convention, thus expressing the will of the
Convention (and presumably of the people upon ratification) that if ever the need to propose
amendments arose during the limited period of transition, the interim National Assembly alone
would discharge the task and no constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to propose
amendments, among them its own abolition, (P24 million annually in salaries alone for its 400
members at P600,000.00 per annum per member, assuming that its deliberations could last for
one year), suffice it to recall this Court's pronouncement in Tolentino (in reflecting a similar
argument on the costs of holding a plebiscite separately from the general elections for elective
officials) that "it is a matter of public knowledge that bigger amounts have been spent or thrown
to waste for many lesser objectives. ... Surely, the amount of seventeen million pesos or even
more is not too much a price to pay for fealty and loyalty to the Constitution ... " 30 and that
"while the financial costs of a separate plebiscite may be high, it can never be as much as the
dangers involved in disregarding clear mandate of the Constitution, no matter how laudable the
objective" and "no consideration of financial costs shall deter Us from adherence to the
requirements of the Constitution".11

10. The imposition of martial law (and "the problems of rebellion, subversion, secession,
recession, inflation and economic crisis a crisis greater than war") 32 cited by the majority
opinion as justifying the concentration of powers in the President, and the recognition now of his
exercising the constituent power to propose amendments to the Fundamental Law "as agent for
and in behalf of the people"33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras reaffirmed for the
Court the principle that emergency in itself cannot and should not create power. In our
democracy the hope and survival of the nation lie in the wisdom and unselfish patriotism of all
officials and in their faithful 'Adherence to the Constitution".

The martial law clause of the 1973 Constitution found in Article IX, section 12 , as stressed by the
writer in his separate opinion in the Referendum Cases,14 "is a verbatim reproduction of Article
VII, section 10 (2) of the 1935 Constitution and provides for the imposition of martial law only 'in
case of invasion, resurrection or rebellion, or imminent danger thereof, when the public safety
requires it and hence the use of the legislative power or more accurately 'military power' under
martial rule is limited to such necessary measures as will safeguard the Republic and suppress
the rebellion (or invasion)". 35

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by the majority in the
Referendum Cases to be the recognition or warrant for the exercise of legislative power by the
President during the period of martial law is but a transitory provision. Together with the martial
law clause, they constitute but two provisions which are not to be considered in isolation from
the Constitution but as mere integral parts thereof which must be harmonized consistently with
the entire Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole instrument, and to
every section and clause. If different portions seem to conflict, the courts must harmonize them,
if practicable, and must lean in favor of a construction which will render every word operative,
rather than one which may make some words Idle and nugatory.

This rule is applicable with special force to written constitutions, in which the
people will be presumed to have expressed themselves in careful and measured
terms, corresponding with the immense importance of the powers delegated,
leaving as little as possible to implication. It is scarcelly conceivable that a case
can arise where a court would bye justified in declaring any portion of a written
constitution nugatory because of ambiguity. One part may qualify another so as
to restrict its operation, or apply it otherwise than the natural construction would
require if it stood by itself; but one part is not to be allowed to defeat another, if
by any reasonable construction the two can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to the Constitution
as well as set up the machinery and prescribe the procedure for the ratification of his proposals
has been withheld from the President (Prime Minister) as sole repository of the Executive
Power, presumably in view of the immense powers already vested in him by the Constitution but
just as importantly, because by the very nature of the constituent power, such amendments
proposals have to be prepared, deliberated and matured by a deliberative assembly of
representatives such as the interim National Assembly and hence may not be antithetically
entrusted to one man.

Former Chief Justice Roberto Concepcion had observed before the elevation of the l971
Constitutional Convention that the records of past plebiscites show that the constitutional
agency vested with the exercise of the constituent power (Congress or the Constitutional
Convention) really determined the amendments to the Constitution since the proposals were
invariably ratified by the people 37 thus: "although the people have the reserved power to ratify
or reject the action taken by the Convention, such power is not, in view of the circumstances
attending its exercise, as effective as one might otherwise think: that, despite the requisite
ratification by the people, the actual contents of our fundamental law will really be determined by
the Convention; that, accordingly the people should exercise the greatest possible degree of
circumspection in the election of delegates thereto ... "38

12. Martial law concededly does not abrogate the Constitution nor obliterate its constitutional
boundaries and allocation of powers among the Executive, Legislative and Judicial
Departments. 39

It has thus been aptly observed that "Martial law is an emergency regime, authorized by and
subject to the Constitution. Its basic premise is to preserve and to maintain the Republic against
the dangers that threaten it. Such premise imposes constraints and limitations. For the martial
law regime fulfills the constitutional purpose only if, by reason of martial law measures, the
Republic is preserved. If by reason of such measures the Republic is so transformed that it is
changed in its nature and becomes a State other than republican, then martial law is a failure;
worse, martial law would have become the enemy of the Republic rather than its defender and
preserver."40

II. On the question of the Court's jurisdiction to pass upon the constitutionality of the questioned
presidential decrees: let it be underscored that the Court has long set at rest the question.

The trail was blazed for the Court since the benchmark case of Angara vs. Electoral
Commission when Justice Jose P. Laurel echoed U.S. Chief Justice Marshall's "climactic
phrase" that "we must never forget that it is a Constitution we are expounding" and declared the
Court's "solemn and sacred" constitutional obligation of judicial review and laid down the
doctrine that the Philippine Constitution as "a definition of the powers of government" placed
upon the judiciary the great burden of "determining the nature, scope and extent of such
powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments . . . but only asserts the solemn and
sacred obliteration entrusted to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which
the instrument secures and guarantees to them".

At the same time, the Court likewise adhered to the constitutional tenet that political questions,
i.e. questions which are intended by the Constitutional and relevant laws to be conclusively
determined by the "political", i.e. branches of government (namely, the Executive and the
Legislative) are outside the Court's jurisdiction. 41

Thus, in Gonzales,42 (by a unanimous Court) and in Tolentino 43 (by the required constitutional
majority), the Court has since consistently ruled that when proposing and approving
amendments to the Constitution, the members of Congress. acting as a constituent assembly or
the members of the Constitutional Convention elected directly for the purpose by not have the
final say on whether or not their acts are within or beyond constitutional limits. Otherwise, they
could brush aside and set the same at naught, contrary to the basic tenet that outs is it
government of lawsom not of men, and to the rigid nature of our Constitution. Such rigidity is
stressed by the fact that, the Constitution expressly confers upon the Supreme Court, the power
to declare a treaty unconstitutional, despite the eminently political character of treaty-making
power".44
As amplified by former Chief Justice Concepcion in Javellana vs Executive Secretary 45 (by a
majority vote), "when the grant of power is qualified, conditional or subject to limitations. the
issue on whether or not the prescribed qualifications or conditions have been met, or the
limitations by expected, is justiciable or non-political, the crux of the problem being one of
legality or validity of the contested act, not its wisdom Otherwise, said qualifications, conditions
and limitations-particularly those prescribed or imposed by the Constitution would be set at
naught".

The fact that the proposed amendments are to be submitted to the people for ratification by no
means makes the question political and non- justiciable since as stressed even in Javellana the
issue of validity of the President's proclamation of ratification of the Constitution presented a
justiciable and non-political question

Stated otherwise, the question of whether the Legislative acting as a constituent assembly or
the Constitutional Convention called fol- the purpose, in proposing amendments to the people
for ratification followed the constitutional procedure and on the amending process is perforce a
justiciable question and does not raise a political question of police or wisdom of the proposed
amendments, which if Submitted, are reserved for the people's decision.

The substantive question presented in the case at bar of whether the President may legally
exercise the constituent power vested in the interim National Assembly (which has not been
granted to his office) and propose constitutional amendments is preeminently a justiciable issue.

Justice Laurel in Angara had duly enjoined that "in times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not
entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers between the several
departments and among the integral or constituent units thereof".

To follow the easy way out by disclaiming jurisdiction over the issue as a political question
would be judicial abdication.

III. On the question of whether there is a sufficient and proper submittal of the proposed
amendments to the people: Prescinding from the writer's view of the nullity of the questioned
decree of lack of authority on the President's part to excercise the constituent power, I hold that
the doctrine of fair and proper submission first enunciated by a simple majority of by Justices in
Gonzales and subsequently officially adopted by the required constitutional two-thirds majority
of the Court in is controlling in the case at bar.

1. There cannot be said to be fair and proper submission of the proposed amendments. As
ruled by this Court in Tolentino where "the proposed amendment in question is expressly
saddled with reservations which naturally impair, in great measures, its very essence as a
proposed constitutional amendment" and where "the way the proposal is worded, read together
with the reservations tacked to it by the Convention thru Section 3 of the questioned resolution,
it is too much of a speculation to assume what exactly the amendment would really amount lo in
the end. All in all, as already pointed out in our discussion of movants' first ground, if this kind of
amendment is allowed, the Philippines will appear before the world to be in the absurd position
of being the only country with a constitution containing a provision so ephemeral no one knows
until when it will bet actually in force", there can be no proper submission.
In Tolentino a solitary amendment reducing the voting age to 18 years was struck down by this
Court which ruled that "in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not only sufficient time but ample
basis for an intelligent appraisal of the nature of the amendment per se as well as its relation to
the other parts of the Constitution with which it has to form a harmonious whole," and that there
was no proper Submission wherein the people are in the dark as to frame of reference they can
base their judgment on

2. The now Chief Justice and Mr. Justice Makasiar with two other members 46 graphically
pointed out in their joint separate opinion that the solitary question "would seem to be
uncomplicated and innocuous. But it is one of life's verities that things which appear to be
simple may turn out not to be so simple after all".47

They further expressed "essential agreement" with Mr. Justice Conrado V. Sanchez' separate
opinion in Gonzales "on the minimum requirements that must be met in order that there can be
a proper submission to the people of a proposed constitutional amendment" which reads thus:

... we take the view that the words 'submitted to the people for their ratification', if
construed in the light of the nature of the Constitution a fundamental charter that
is legislation direct from the people, an expression of their sovereign will - is that
it can only be amended by the people expressing themselves according to the
procedure ordained by the Constitution. Therefore, amendments must be fairly
laid before the people for their blessing or spurning. The people are not to be
mere rubber stamps. They are not to vote blindly. They must be afforded ample
opportunity to mull over the original provisions, compare them with the proposed
amendments, and try to reach a conclusion as the dictates of their conscience
suggest, free from the incubus of extraneous or possibly insidious influences. We
believe the word submitted' can only mean that the government, within its
maximum capabilities, should strain every effort to inform every citizen of the
provisions to be amended, and the proposed amendments and the meaning,
nature and effects thereof. By this, we are not to be understood as saying that, if
one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no
submission within the meaning of the word as intended by the framers of the
Constitution. What the Constitution in effect directs is that the government, in
submitting an amendment for ratification, should put every instrumentality or
agency within its structural framework to enlighten the people, educate them with
respect to their act of ratification or rejection. For, as we have earlier stated, one
thing is submission and another is ratification. There must be fair submission,
intelligent. consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then so be it. For
the people decree their own fate.48

Justice Sanchez therein ended the passage with an apt citation that " ... " The great men who
builded the structure of our state in this respect had the mental vision of a good Constitution
voiced by Judge Cooley, who has said 'A good Constitution should be beyond the reach of
temporary excitement and. popular caprice or passion. It is needed for stability and steadiness;
it must yield to the thought of the people; not to the whim of the people, or the thought evolved
in excitement or hot blood, but the sober second thought, which alone, if the government is to
be safe, can be allowed efficiency. xxx xxx xxx Changes in government are to be feared unless
the benefit is certain. As Montaign says: All great mutations shake and disorder state. Good
does not necessarily succeed evil ;another evil may succeed and a worse'." 49

Justice Sanchez thus stated the rule that has been adopted by the Court in Tolentino that there
is no proper submission "if the people are not sufficiently affirmed of the amendments to be
voted upon, to conscientiously deliberate thereon, to express their will in a genuine
manner. ... .." 50

3. From the complex and complicated proposed amendments set forth in the challenged decree
and the plethora of confused and confusing clarifications reported in the daily newspapers, it is
manifest that there is no proper submission of the proposed amendments. Nine (9) proposed
constitutional amendments were officially proposed and made known as per Presidential
Decree No. 1033 dated, September 22, 1976 for submittal at the "referendum-plebiscite" called
for this coming Saturday, October 16, 1976 wherein the 15-year and under 18-year- olds are
enjoined to vote notwithstanding their lack of qualification under Article VI of the Constitution.
Former Senator Arturo Tolentino, an acknowledged parliamentarian of the highest order, was
reported by the newspapers last October 3 to have observed that "there is no urgency in
approving the proposed amendments to the Constitution and suggested that the question
regarding charter changes be modified instead of asking the people to vote on hurriedly
prepared amendments". He further pointed out that "apart from lacking the parliamentary style
in the body of the Constitution, they do not indicate what particular provisions are being
repealed or amended".52

As of this writing, October 11, 1976, the paper today reported his seven-page analysis
questioning among others the proposed granting of dual legislative powers to both the President
and the Batasang Pambansa and remarking that "This dual legislative authority can give rise to
confusion and serious constitutional questions".53

Aside from the inadequacy of the limited time given for the people's consideration of the
proposed amendments, there can be no proper submission because the proposed amendments
are not in proper form and violate the cardinal rule of amendments of written constitutions that
the specific provisions of the Constitution being repealed or amended as well as how the
specific provisions as amended would read, should be clearly stated in careful and measured
terms. There can be no proper submission because the vagueness and ambiguity of the
proposals do not sufficiently inform the people of the amendments for, conscientious
deliberation and intelligent consent or rejection.

4. While the press and the Solicitor General at the hearing have stated that the principal thrust
of the proposals is to substitute the interim National Assembly with an interim Batasang
Pambansa, a serious study thereof in detail would lead to the conclusion that the whole context
of the 1973 Constitution proper would be affected and grave amendments and modifications
thereof -would apparently be made, among others, as follows:

Under Amendment No. 1, the qualification age of members of the interim Batasang Pambansa
is reduced to 18 years;

Under Amendment No. 2, the treaty-concurring power of the Legislature is withheld from the
interim Batasang Pambansa;
Under Amendment No 3, not withstanding the convening of the interim Batasang Pambansa
within 30 days from the election and selection of the members (for which there is no fixed date)
the incumbent President apparently becomes a regular President and Prime Minister (not ad
interim);

Under Amendment No. 4, the disqualifications imposed on members of the Cabinet in the
Constitution such as the prohibition against the holding of more than one office in the
government including government-owned or -controlled corporations would appear to be
eliminated, if not prescribed by the President;

Under Amendment No. 5, the President shall continue to exercise legislative powers until
martial law is lifted;

Under Amendment No. 6, there is a duality of legislative authority given the President and the
interim Batasang Pambansa as well as the regular National Assembly, as pointed out by
Senator Tolentino, with the President continuing to exercise legislative powers in case of "grave
emergency or a threat or imminence thereof" (without definition of terms) or when said
Assemblies "fail or are unable to act adequately on any matter for any reason that in his
judgment requires immediate action", thus radically affecting provisions of the Constitution
governing the said departments;

Under Amendment No. 7, the barangays and Sanggunians would apparently be

constitutionalized, although their functions, power and composition may be altered by law.
Referendums (which are not authorized in the present 1973 Constitution) would also be
constitutionalized, giving rise to the possibility fraught with grave consequences, as
acknowledged at the hearing, that amendments to the Constitution may thereafter be effected
by referendum, rather than by the rigid and strict amending process provided presently in Article
XVI of the Constitution;

Under Amendment No. 8, there is a general statement in general that the unspecified provisions
of the Constitution "not inconsistent with any of these amendments" shall continue in full force
and effect; and Under Amendment No. 9. the incumbent President is authorized to proclaim the
ratification of the amendments by the majority of votes cast. It has likewise been stressed by the
officials concerned that the proposed amendments come in a package and may not be voted
upon separately but on an "all or nothing" basis.

5. Whether the people can normally express their will in a genuine manner and with due
circumspection on the proposed amendments amidst the constraints of martial law is yet
another question. That a period of free debate and discussion has to be declared of itself shows
the limitations on free debate and discussion. The facilities for free debate and discussion over
the mass media, print and otherwise are wanting. The President himself is reported to have
observed the timidity of the media under martial law and to have directed the press to air the
views of the opposition.54

Indeed, the voice of the studentry as reflected in the editorial of the Philippine Collegian issue of
September 23, 1976 comes as a welcome and refreshing model of conscientious deliberation,
as our youth analyzes the issues "which will affect generations yet to come" and urge the
people to mull over the pros and cons very carefully", as follows:

THE REFERENDUM ISSUES

On October 16, the people may be asked to decide on two important national
issues - the creation of a new legislative body and the lifting of martial law.

On the first issue, it is almost sure that the interim National Assembly will not be
convened, primarily because of its membership. Majority of the members of the
defunct Congress, who are mandated by the Constitution to become members of
the interim National Assembly, have gained so widespread a notoriety that the
mere mention of Congress conjures the image of a den of thieves who are out to
fool the people most of the time. Among the three branches of government, it
was the most discredited. In fact, upon the declaration of martial law, some
people were heard to mutter that a 'regime that has finally put an end to such
congressional shenanigans could not be all that bad'.

A substitute legislative body is contemplated to help the President in

promulgating laws, and perhaps minimize the issuance of ill-drafted decrees
which necessitate constant amendments. But care should be taken that this new
legislative body would not become a mere rubber stamp akin to those of other
totalitarian countries. It should be given real powers, otherwise we will just have
another nebulous creation having the form but lacking the substance. Already the
President has expressed the desire that among the powers he would like to have
with regard to the proposed legislative body is that of abolishing it in case 'there
is a need to do so'. As to what would occasion such a need, only the President
himself can determine. This would afford the Chief Executive almost total power
over the legislature, for he could always offer the members thereof a carrot and a
stick.

On the matter of lifting martial law the people have expressed ambivalent
attitudes. Some of them, remembering the turmoil that prevailed before the
declaration of martial law, have expressed the fear that its lifting might precipitate
the revival of the abuses of the past, and provide an occasion for evil elements to
resurface with their usual tricks. Others say that it is about time martial law was
lifted since the peace and order situation has already stabilized and the economy
seems to have been parked up.

The regime of martial law has been with us for four years now. No doubt, martial
law has initially secured some reforms for the country The people were quite
willing to participate in the new experiment, thrilled by the novelty of it all. After
the euphoria, however, the people seem to have gone back to the old ways, with
the exception that some of our freedoms were taken away, and an authoritarian
regime established.

We must bear in mind that martial law was envisioned only to cope with an
existing national crisis, It was not meant to be availed of for a long period of time,
otherwise it would undermine our adherence to a democratic form of
government. In the words of the Constitution. martial law shall only be declared in
times of 'rebellion, insurrection,. invasion, or imminent danger thereof, when the
public safety requires it'. Since we no longer suffer from internal disturbances of a
gargantuan scale, it is about time we seriously rethink the 'necessity' of
prolonging the martial law regime. If we justify the continuance of martial by
economic or other reasons other than the foregoing constitutional grounds, then
 our faith in the Constitution might be questioned. Even without martial law,. the
incumbent Chief Executive still holds vast powers under the constitution. After all,
the gains of the New Society can be secured without sacrificing the freedom of
our people. If the converse is true, then we might have to conclude that the
Filipinos deserve a dictatorial form of government. The referendum results will
show whether the people themselves have adopted this sad conclusion.

The response of the people to the foregoing issues will affect generations yet to
come, so they should mull over the pros and cons very carefully."

6. This opinion by written in the same spirit as the President's exhortations on the first
anniversary of proclamation of the 1973 Constitution that we "let the Constitution remain firm
and stable" so that it may "guide the people", and that we "remain steadfast on the rule of law
and the Constitution" as he recalled his rejection of the "exercise (of) power that can be
Identified merely with a revolutionary government" that makes its own law, thus:

. . . Whoever he may be and whatever position he may happen to have, whether

in government or outside government, it is absolutely necessary now that we look
solemnly and perceptively into the Constitution and try to discover for ourselves
what our role is in the successful implementation of that Constitution. With this
thought, therefore, we can agree on one thing and that is: Let all of us age, let all
of us then pass away as a pace in the development of our country. but let the
Constitution remain firm and stable and let institutions grow in strength from day
to day, from achievement to achievement, and so long as that Constitution
stands, whoever may the man in power be, whatever may his purpose be, that
Constitution will guide the people and no man, however, powerful he may be, will
dare to destroy and wreck the foundation of such a Constitution.

These are the reasons why I personally, having proclaimed martial law, having
been often induced to exercise power that can be Identified merely with a
revolutionary government, have remained steadfast or the rule of law and the
Constitution. 54*

IV. A final word on the Court's resolution of October 5, 1976 which in reply to the Comelec query
allowed by a vote of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as
resource speakers under Section 5 of Presidential Decree No. 991, as amended, as well as to
take sides in discussions and debates on the referendum-plebiscite questions under Section 7
of the same Decree."55

The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had dissented from the
majority resolution, with all due respect, on the ground that the non-participation of judges in
such public discussions and debates on the referendum-plebiscite questions would preserve the
traditional non-involvement of the judiciary in public discussions of controversial issues. This is
essential for the maintenance and enhancement of the people's faith and confidence in the
judiciary. The questions of the validity of the scheduled referendum- plebiscite and of whether
there is proper submission of the proposed amendments were precisely subjudice by virtue of
the cases at bar.

The lifting of the traditional inhibition of judges from public discussion and debate might blemish
the image and independence of the judiciary. Aside from the fact that the fixing of a time limit for
the acceptance of their courtesy resignations to avoid an indefinite state of insecurity of their
tenure in office still spends litigants and their relatives and friends as well as a good sector of
the public would be hesitant to air views contrary to that of the.

Judge. Justices Makasiar and Munoz Palma who share these views have agreed that we make
them of record here, since we understand that the permission given in the resolution is
nevertheless addressed to the personal decision and conscience of each judge, and these
views may he of some guidance to them.

BARREDO, J.,: concurring:

While I am in full agreement with the majority of my brethren that the herein petitions should be
dismissed, as in fact I vote for their dismissal, I deem it imperative that I should state separately
the considerations that have impelled me to do so.

Perhaps, it is best that I should start by trying to disabuse the minds of those who have doubts
as to whether or not I should have taken part in the consideration and resolution of these cases.
Indeed, it would not be befitting my position in this Highest Tribunal of the land for me to leave
unmentioned the circumstances which have given cause, I presume, for others to feel
apprehensive that my participation in these proceedings might detract from that degree of faith
in the impartiality that the Court's judgment herein should ordinarily command. In a way, it can
be said, of course, that I am the one most responsible for such a rather problematical situation,
and it is precisely for this reason that I have decided to begin this opinion with a discussion of
why I have not inhibited myself, trusting most confidently that what I have to say will be taken in
the same spirit of good faith, sincerity and purity of purpose in which I am resolved to offer the
same.

Plain honesty dictates that I should make of record here the pertinent contents of the official
report of the Executive Committee of the Katipunan ng mga Sanggunian submitted to the
Katipunan itself about the proceedings held on August 14, 1976. It is stated in that public
document that:

THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body

came out when the President express his desire to share his powers with other
people.

Aware of this, a five-man Committee members of the Philippine Constitution Association

(PHILCONSA) headed by Supreme Court Justice Antonio Barredo proposed on July 28, the
establishment of 'Sangguniang Pambansa' or 'Batasang Pambansa' which would help the
President in the performance of his legislative functions. The proposed new body will take the
place of the interim National Assembly which is considered not practical to convene at this time
considering the constitution of its membership.

Upon learning the proposal of Justice Barredo, the country's 42,000 barangay assemblies on
August 1 suggested that the people be consulted on a proposal to create a new legislative body
to replace the interim assembly provided for by the Constitution. The suggestion of the
barangay units was made through their national association, Pambansang Katipunan ng mga
Barangay headed by Mrs. Nora Z. Patines. She said that the people have shown in at least six
instances including in the two past referenda that they are against the convening of the interim
National Assembly. She also said that since the people had ruled out the calling of such
assembly and that they have once proposed that the President create instead the Sangguniang
Pambansa or a legislative advisory body, then the proposal to create a new legislative must
necessarily be referred to the people.

The federation of Kabataang Barangay, also numbering 42,000 units like their elder
counterparts in the Katipunan ng mga Barangay also asserted their own right to be heard on
whatever plans are afoot to convene a new legislative body.

On August 6, a meeting of the national directorate of PKB was held to discuss matters
pertaining to the stand of the PKB with regards to the convening of a new legislative body. The
stand of the PKB is to create a legislative advisory council in place of the old assembly. Two
days after, August 8, the Kabataang Barangay held a symposium and made a stand which is
the creation of a body with full legislative powers.

A nationwide clamor for the holding of meeting in their respective localities to discuss more
intellegently the proposal to create a new legislative body was made by various urban and rural
Sangguniang Bayans.

Numerous requests made by some members coming from 75 provincial and 61 city SB
assemblies, were forwarded to the Department of Local Government and Community
Development (DLGCD).

On August 7, Local Government Secretary, Jose A. Rono granted the request by convening the
91 member National Executive Committee of the Pambansang Katipunan ng mga Sanggunian
on August 14 which was held at Session Hall, Quezon City. Invited also to participate were 13
Regional Federation Presidents each coming from the PKB and the PKKB

Actually, the extent of my active participation in the events and deliberations that have
culminated in the holding of the proposed referendum- plebiscite on October 16, 1976, which
petitioners are here seeking to enjoin, has been more substantial and meaningful than the
above report imparts. Most importantly, aside from being probably the first person to publicly
articulate the need for the creation of an interim legislative body to take the place of. the interim
National Assembly provided for in the Transitory Provisions of the Constitution, as suggested in
the above report, I might say that I was the one most vehement and persistent in publicly
advocating and urging the authorities concerned to directly submit to the people in a plebiscite
whatever amendments of the Constitution might be considered necessary for the establishment
of such substitute interim legislature. In the aforementioned session of the Executive Committee
of the Katipunan, I discourse on the indispensability of a new interim legislative body as the
initial step towards the early lifting of martial law and on the fundamental considerations why in
our present situation a constitutional convention would be superfluous in amending the
Constitution.

Moreover, it is a matter of public knowledge that in a speech I delivered at the Coral Ballroom of
the Hilton Hotel in the evening of August 17, 1976, I denounced in no uncertain terms the plan
to call a constitutional convention. I reiterated the same views on September 7, 1976 at the
initial conference called by the Comelec in the course of the information and educational
campaign it was enjoined to conduct on the subject. And looking back at the subsequent
developments up to September 22, 1976, when the Batasang Bayan approved and the
President signed the now impugned Presidential Decree No. 1033, it is but human for me to
want to believe that to a certain extent my strong criticisms and resolute stand against any other
alternative procedure of amending the Constitution for the purpose intended had borne fruit.

I must hasten to add at this point, however, that in a larger sense, the initiative for all I have
done, was not altogether mine alone. The truth of the matter is that throughout the four years of
this martial law government, it has always been my faith, as a result of casual and occasional
exchanges of thought with President Marcos, that when the appropriate time does come, the
President would somehow make it known that in his judgment, the situation has already so
improved as to permit the implementation, if gradual, of the constitutionally envisioned evolution
of our government from its present state to a parliamentary one. Naturally, this would inevitably
involve the establishment of a legislative body to replace the abortive interim National
Assembly. I have kept tract of all the public and private pronouncements of the President, and it
was the result of my reading thereof that furnished the immediate basis for my virtually
precipitating, in one way or another, the materialization of the forthcoming referendum-
plebiscite. In other words, in the final analysis, it was the President's own attitude on the matter
that made it opportune for me to articulate my own feelings and Ideas as to how the nation can
move meaningfully towards normalization and to publicly raise the issues that have been
ventilated by the parties in the instant cases.

I would not be human, if I did not consider myself privileged in having been afforded by Divine
Providence the opportunity to contribute a modest share in the formulation of the steps that
should lead ultimately to the lifting of martial law in our country. Indeed, I am certain every true
Filipino is anxiously looking forward to that eventuality. And if for having voiced the sentiments
of our people, where others would have preferred to be comfortably silent, and if for having
made public what every Filipino must have been feeling in his heart all these years, I should be
singled out as entertaining such preconceived opinions regarding the issues before the Court in
the cases at bar as to preclude me from taking part in their disposition, I can only say that I do
not believe there is any other Filipino in and out of the Court today who is not equally situated as
I am .

The matters that concern the Court in the instant petitions do not involve merely the individual
interests of any single person or group of persons. Besides, the stakes in these cases affect
everyone commonly, not individually. The current of history that has passed through the whole
country in the wake of martial law has swept all of us, sparing none, and the problem of national
survival and of restoring democratic institutions and Ideals is seeking solution in the minds of all
of us. That I have preferred to discuss publicly my own thoughts on the matter cannot mean that
my colleagues in the Court have been indifferent and apathetic about it, for they too are
Filipinos. Articulated or not, all of us must have our own preconceived Ideas and notions in
respect to the situation that confronts the country. To be sure, our votes and opinions in the-
major political cases in the recent past should more or less indicate our respective basic
positions relevant to the issues now before Us. Certainly, contending counsels cannot be
entirely in the dark in this regard. I feel that it must have been precisely because of such
awareness that despite my known public participation in the discussion of the questions herein
involved, none of the parties have sought my inhibition or disqualification.

Actually, although it may be difficult for others to believe it, I have never allowed my
preconceptions and personal inclinations to affect the objectivity needed in the resolution of any
judicial question before the Court. I feel I have always been able to appreciate, fully consider
and duly weigh arguments and points raised by all counsels, even when they conflict with my
previous views. I am never beyond being convinced by good and substantial ratiocination.
Nothing has delighted me more than to discover that somebody else has thought of more
weighty arguments refuting my own, regardless of what or whose interests are at stake. I would
not have accepted my position in the Court had I felt I would not be able to be above my
personal prejudices. To my mind, it is not that a judge has preconceptions that counts, it is his
capacity and readiness to absorb contrary views that are indispensable for justice to prevail.
That suspicions of prejudgment may likely arise is unavoidable; but I have always maintained
that whatever improper factors might influence a judge will unavoidably always appear on the
face of the decision. In any event, is there better guarantee of justice when the preconceptions
of a judge are concealed?

Withal, in point of law, I belong to the school of thought that regards members of the Supreme
Court as not covered by the general rules relative to disqualification and inhibition of judges in
cases before them. If I have in practice actually refrained from participating in some cases, it
has not been because of any legal ground founded on said rules, but for purely personal
reasons, specially because, anyway, my vote would not have altered the results therein.

It is my considered opinion that unlike in the cases of judges in the lower courts, the Constitution
does not envisage compulsory disqualification or inhibition in any case by any member of the
Supreme Court. The Charter establishes a Supreme Court "composed of a Chief Justice and
fourteen Associate Justices", with the particular qualifications therein set forth and to be
appointed in the manner therein provided. Nowhere in the Constitution is there any indication
that the legislature may designate by law instances wherein any of the justices should not or
may not take part in the resolution of any case, much less who should take his place. Members
of the Supreme Court are definite constitutional officers; it is not within the power of the
lawmaking body to replace them even temporarily for any reason. To put it the other way,
nobody who has not been duly appointed as a member of the Supreme Court can sit in it at any
time or for any reason. The Judicial power is vested in the Supreme Court composed as the
Constitution ordains - that power cannot be exercised by a Supreme Court constituted
otherwise. And so, when as in the instant where, if any of the member of Court is to abstain
from taking part, there would be no quorum - and no court to render the decision - it is the
includible duty of all the incumbent justices to participate in the proceedings and to cast their
votes, considering that for the reasons stated above, the provisions of Section 9 of the Judiciary
Act do not appear to conform with the concept of the office of Justice of the Supreme Court
contemplated in the Constitution.

The very nature of the office of Justice of the Supreme Court as the tribunal of last resort and
bulwark of the rights and liberties of all the people demands that only one of dependable and
trustworthy probity should occupy the same. Absolute integrity, mental and otherwise, must be
by everyone who is appointed thereto. The moral character of every member of the Court must
be assumed to be such that in no case whatsoever. regardless of the issues and the parties
involved, may it be feared that anyone's life, liberty or property, much less the national interests,
would ever be in jeopardy of being unjustly and improperly subjected to any kind of judicial
sanction. In sum, every Justice of the Supreme Court is expected to be capable of rising above
himself in every case and of having full control of his emotions and prejudices, such that with
the legal training and experience he must of necessity be adequately equipped with, it would be
indubitable that his judgment cannot be but objectively impartial, Indeed, even the appointing
power, to whom the Justices owe their positions, should never hope to be unduly favored by any
action of the Supreme Court. All appointments to the Court are based on these considerations,
hence the ordinary rules on inhibition and disqualification do not have to be applied to its
members.
With the preliminary matter of my individual circumstances out of the way, I shall now address
myself to the grave issues submitted for Our resolution.

-I-

In regard to the first issue as to whether the questions posed in the petitions herein are political
or justiciable, suffice it for me to reiterate the fundamental position I took in the Martial Law
cases,1 thus

As We enter the extremely delicate task of resolving the grave issues thus thrust
upon Us. We are immediately encountered by absolute verities to guide Us all
the way. The first and most important of them is that the Constitution (Unless
expressly stated otherwise, all references to the Constitution in this discussion
are to both the 1935 and 1973 charters, since, after all, the pertinent provisions
are practically Identical in both is the supreme law of the land. This means
among other things that all the powers of the government and of all its officials
from the President down to the lowest emanate from it. None of them may
exercise any power unless it can be traced thereto either textually or by natural
and logical implication. "The second is that it is settled that the Judiciary
provisions of the Constitution point to the Supreme Court as the ultimate arbiter
of all conflicts as to what the Constitution or any part thereof means. While the
other Departments may adopt their own construction thereof, when such
construction is challenged by the proper party in an appropriate case wherein a
decision would be impossible without determining the correct construction, the
Supreme Court's word on the matter controls.

xxx xxx xxx

xxx xxx xxx

The fifth is that in the same manner that the Executive power conferred upon the
Executive by the Constitution is complete, total and unlimited, so also, the judicial
power vested in the Supreme Court and the inferior courts, is the very whole of
that power, without any limitation or qualification.

xxx xxx xxx

xxx xxx xxx

From these incontrovertible postulates, it results, first of all, that the main
question before Us is not in reality one of jurisdiction, for there can be no
conceivable controversy, especially one involving a conflict as to the correct
construction of the Constitution, that is not contemplated to be within the judicial
authority of the courts to hear and decide. The judicial power of the courts being
unlimited and unqualified, it extends over all situations that call for the as
certainment and protection of the rights of any party allegedly violated, even
when the alleged violator is the highest official of the land or the government
itself. It is, therefore, evidence that the Court's jurisdiction to take cognizance of
and to decide the instant petitions on their merits is beyond challenge.
 In this connection, however, it must be borne in mind that in the form of
government envisaged by the framers of the Constitution and adopted by our
people, the Court's indisputable and plenary authority to decide does not
necessarily impose upon it the duty to interpose its fiat as the only means of
settling the conflicting claims of the parties before it. It is ingrained in the
distribution of powers in the fundamental law that hand in hand with the vesting
of the judicial power upon the Court, the Constitution has coevally conferred
upon it the discretion to determine, in consideration of the constitutional
prerogatives granted to the other Departments, when to refrain from imposing
judicial solutions and instead defer to the judgment of the latter. It is in the very
nature of republican governments that certain matters are left in the residual
power of the people themselves to resolve, either directly at the polls or thru their
elected representatives in the political Departments of the government. And
these reserved matters are easily distinguishable by their very nature, when one
studiously considers the basic functions and responsibilities entrusted by the
charter to each of the great Departments of the government. To cite an obvious
example, the protection, defense and preservation of the state against internal or
external aggression threatening its very existence is far from being within the
ambit of judicial responsibility. The distinct role then of the Supreme Court of
being the final arbiter in the determination of constitutional controversies does not
have to be asserted in such contemplated situations, thereby to give way to the
ultimate prerogative of the people articulated thru suffrage or thru the acts of their
political representatives they have elected for the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of what is known in
American constitutional law as the political question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more
attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power,
upon the theory that unless the courts intervene injustice might prevail. It has been invoked and
applied by this Court in varied forms and mode of projection in several momentous instances in
the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16 Phil. 366; Abueva
vs. Wood, 45 Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192;
Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88 Phil. 654; Montenegro vs.
Castaneda, 91 Phil. 882, Santos vs. Yatco, 55 O.G. 8641 [Minute Resolution of Nov. 6, 19591
Osmena vs. Pendatun, Oct. 28, 1960.) and it is the main support of the stand of the Solicitor
General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of
judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and
self- restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives
in any particular eventuality is naturally dictated by what in the Court's considered opinion is
what the Constitution envisions should be by in order to accomplish the objectives of
government and of nationhood. And perhaps it may be added here to avoid confusion of
concepts, that We are not losing sight of the traditional approach based on the doctrine of
separation of powers. In truth, We perceive that even under such mode of rationalization, the
existence of power is secondary, respect for the acts of a co-ordinate, co-equal and
independent Department being the general rule, particularly when the issue is not
encroachment of delimited areas of functions but alleged abuse of a Department's own basic
prerogatives. (59 SCRA, pp. 379-383.)

Applying the foregoing considerations to the cases at bar, I hold that the Court has jurisdiction to
pass on the merits of the various claims of petitioners. At the same time, however, I maintain
that the basic nature of the issues herein raised requires that the Court should exercise its
constitutionally endowed prerogative to refrain from exerting its judicial authority in the
premises.

Stripped of incidental aspects, the constitutional problem that confronts Us stems from the
absence of any clear and definite express provision in the Charter applicable to the factual
milieu herein involved. The primary issue is, to whom, under the circumstances, does the
authority to propose amendments to the Constitution property belong? To say, in the light of
Section 15 of Article XVII of the Charter, that that faculty lies in the interim National Assembly is
to beg the main question. Indeed, there could be no occasion for doubt or debate, if it could '
only be assumed that the interim National Assembly envisaged in Sections 1 and 2 of the same
Article XVII may be convoked. But precisely, the fundamental issue We are called upon to
decide is whether or not it is still constitutionally possible to convene that body. And relative to
that question, the inquiry centers on whether or not the political developments since the
ratification of the Constitution indicate that the people have in effect enjoined the convening of
the interim National Assembly altogether. On this score, it is my assessment that the results of
the referenda of January 10-15, 1973, July 27-28, 1973 and February 27, 1975 clearly show
that the great majority of our people, for reasons plainly obvious to anyone who would consider
the composition of that Assembly, what with its more than 400 members automatically voted
into it by the Constitutional Convention together with its own members, are against its being
convoked at all.

Whether or not such a manifest determination of the sentiments of the people should be given
effect without a formal amendment of the Constitution is something that constitutional scholars
may endlessly debate on. What cannot be disputed, however, is that the government and the
nation have acquiesced to, it and have actually operated on the basis thereof. Proclamation
1103 which, on the predicate that the overwhelming majority of the people desire that the
interim Assembly be not convened, has ordained the suspension of its convocation, has not
been assailed either judicially or otherwise since the date of its promulgation on January 17,
1973.

In these premises, it is consequently the task of the Court to determine what, under these
circumstances, is the constitutional relevance of the interim National Assembly to any proposal
to amend the Constitution at this time. It is my considered opinion that in resolving that question,
the Court must have to grapple with the problem of what to do with the will of the people, which
although manifested in a manner not explicitly provided for in the Constitution, was nevertheless
official, and reliable, and what is more important clear and unmistakable, despite the known
existence of well-meaning, if insufficiently substantial dissent. Such being the situation, I hold
that it is not proper for the Court to interpose its judicial authority against the evident decision of
the people and should leave it to the political department of the government to devise the ways
and means of resolving the resulting problem of how to amend the Constitution, so long as in
choosing the same, the ultimate constituent power is left to be exercised by the people
themselves in a well- ordered plebiscite as required by the fundamental law.

-2-

Assuming We have to inquire into the merits of the issue relative to the constitutional authority
behind the projected amendment of the Charter in the manner provided in Presidential Decree
1033, I hold that in the peculiar situation in which the government is today, it is not incompatible
with the Constitution for the President to propose the subject amendments for ratification by the
people in a formal plebiscite under the supervision of the Commission on Elections. On the
contrary, in the absence of any express prohibition in the letter of the Charter, the Presidential
Decree in question is entirely consistent with the spirit and the principles underlying the
Constitution. The correctness of this conclusion should become even more patent, when one
considers the political developments that the people have brought about since the ratification of
the Constitution on January 17,1973.

I consider it apropos at this juncture to repeat my own words in a speech I delivered on the
occasion of the celebration of Law Day on September 18, 1975 before the members of the
Philippine Constitution Association and their guests:

To fully comprehend the constitutional situation in the Philippines today, one has
to bear in mind that, as I have mentioned earlier, the martial law proclaimed
under the 1935 Constitution overtook the drafting of the new charter by the
Constitutional Convention of 1971. It was inevitable, therefore, that the delegates
had to take into account not only the developments under it but, most of all, its
declared objectives and what the President, as its administrator, was doing to
achieve them. In this connection, it is worthy of mention that an attempt to
adjourn the convention was roundly voted down to signify the determination of
the delegates to finish earliest their work, thereby to accomplish the mission
entrusted to them by the people to introduce meaningful reforms in our
government and society. Indeed, the constituent labors gained rapid tempo, but
in the process, the delegates were to realize that the reforms they were
formulating could be best implemented if the martial law powers of the President
were to be allowed to subsist even after the ratification of the Constitution they
were approving. This denouement was unusual. Ordinarily, a constitution born
out of a crisis is supposed to provide all the needed cures and can, therefore, be
immediately in full force and effect after ratification. Not so, with our 1973
Constitution, Yes, according to the Supreme Court, 'there is no more judicial
obstacle to the new Constitution being considered in force and effect', but in
truth, it is not yet so in full. Let me explain.

To begin with, in analyzing the new Constitution, we must be careful to distinguish between the
body or main part thereof and its transitory provisions. It is imperative to do so because the
transitory provisions of our Constitution are extraordinary in the sense that obviously they have
been designed to provide not only for the transition of our government from the presidential form
under the past charter to a parliamentary one as envisaged in the new fundamental law, but
also to institutionalize, according to the President, the reforms introduced thru the exercise of
his martial law powers. Stated differently, the transitory provisions, as it has turned out, has in
effect established a transition government, not, I am sure, perceived by many. It is a
government that is neither presidential nor parliamentary. It is headed, of course, by President
Marcos who not on retains all his powers under the 1935 Constitution but enjoys as well those
of the President and the Prime Minister under the new Constitution. Most importantly, he can
and does legislate alone. But to be more accurate, I should say that he legislates alone in spite
of the existence of the interim National Assembly unequivocally ordained by the Constitution, for
the simple reason that he has suspended the convening of said assembly by issuing
Proclamation No. 1103 purportedly 'in deference to the sovereign will of the Filipino people'
expressed in the January 10-15, 1973 referendum.

Thus, we have here the unique case of a qualified ratification. The whole Constitution was
submitted for approval or disapproval of the people, and after the votes were counted and the
affirmative majority known, we were told that the resulting ratification was subject to the
condition that the interim National Assembly evidently established in the Constitution as the
distinctive and indispensable element of a parliamentary form of government should
nevertheless be not convened and that no elections should be held for about seven years, with
the consequence that we have now a parliamentary government without a parliament and a
republic without any regular election of its officials. And as you can see, this phenomenon came
into being not by virtue of the Constitution but of the direct mandate of the sovereign people
expressed in a referendum. In other words, in an unprecedented extra-constitutional way, we
have established, wittingly or unwittingly, a direct democracy through the Citizens Assemblies
created by Presidential Decree No. 86, which later on have been transformed into barangays, a
system of government proclaimed by the President as 'a real achievement in participatory
democracy.' What I am trying to say, my friends, is that as I perceive it, what is now known as
constitutional authoritarianism means, in the final analysis, that the fundamental source of
authority of our existing government may not be necessarily found within the four corners of the
Constitution but rather in the results of periodic referendums conducted by the Commission on
Elections in a manner well known to all of us This, as I see it, is perhaps what the President
means by saying that under the new Constitution he has extra-ordinary powers independently of
martial law - powers sanctioned directly by the people which may not even be read in the
language of the Constitution. in brief, when we talk of the rule of law nowadays, our frame of
reference should not necessarily be the Constitution but the outcome of referendums called
from time to time by the President. The sooner we imbibe this vital concept the more intelligent
will our perspective be in giving our support and loyalty to the existing government. What is
more, the clearer will it be that except for the fact that all the powers of government are being
exercised by the President, we - do not in reality have a dictatorship but an experimental type of
direct democracy."

In the foregoing disquisition, I purposely made no mention of the referendum of February 27,
1975. It is important to note, relative to the main issue now before Us, that it was originally
planned to ask the people in that referendum whether or not they would like the interim National
Assembly to convene, but the Comelec to whom the task of preparing the questions was
assigned was prevailed upon not to include any -such question anymore, precisely because it
was the prevalent view even among the delegates to the Convention as well as the members of
the old Congress concerned that that matter had already been finally resolved in the previous
referenda of January and July 1973 in the sense that. the Assembly should not be convened
comparable to res adjudicata.

It is my position that as a result of the political developments since January 17, 1973 the
transitory provisions envisioning the convening of the interim National Assembly have been
rendered legally inoperative. There is no doubt in my mind that for the President to convoke the
interim National Assembly as such would be to disregard the will of the people - something no
head of a democratic republican state like ours should do. And I find it simply logical that the
reasons that motivated the people to enjoin the convening of the Assembly - the unusually large
and unmanageable number of its members and the controversial morality of its automatic
composition consisting of all the incumbent elective national executive and legislative officials
under the Old Constitution who would agree to join it and the delegates themselves to the
Convention who had voted in favor of the Transitory Provisions - apply not only to the Assembly
as an ordinary legislature but perhaps more to its being a constituent body. And to be more
realistic, it is but natural to conclude that since the people are against politicians in the old order
having anything to do with the formulation of national policies, there must be more reasons for
them to frown on said politicians taking part in amendment of the fundamental law, specially
because the particular amendment herein involved calls for the abolition of the interim National
Assembly to which they belong and its substitution by the Batasang Pambansa.

It is argued that in law, the qualified or conditional ratification of a constitution is not

contemplated. I disagree. It is inconsistent with the plenary power of the people to give or
withhold their assent to a proposed Constitution to maintain that they can do so only wholly. I
cannot imagine any sound principle that can be invoked to support the theory that the proposing
authority can limit the power of ratification of the people. As long as there are reliable means by
which only partial approval can be manifested, no cogent reason exists why the sovereign
people may not do so. True it is that no proposed Constitution can be perfect and it may
therefore be taken with the good and the bad in it, but when there are feasible ways by which it
can be determined which portions of it, the people disapprove. it would be stretching technicality
beyond its purported office to render the final authority - the people impotent to act according to
what they deem best suitable to their interests.

In any event, I feel it would be of no consequence to debate at length regarding the legal
feasibility of qualified ratification. Proclamation 1103 categorically declares that:

WHEREAS, fourteen million nine hundred seventy six thousand five hundred
sixty-one (14,976.561) members of all the Barangays voted for the adoption of
the proposed Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; but a majority of those
who approved the new Constitution conditioned their votes on the demand that
the interim National Assembly provided in its Transitory Provisions should not be
convened.

and in consequence, the President has acted accordingly by not convening the Assembly. The
above factual premises of Proclamation 1103 is not disputed by petitioners. Actually, it is
binding on the Court, the same being a political act of a coordinate department of the
government not properly assailed as arbitrary or whimsical. At this point, it must be emphasized
in relation to the contention that a referendum is only consultative, that Proclamation 1103,
taken together with Proclamation 1102 which proclaimed the ratification of the Constitution,
must be accorded the same legal significance as the latter proclamation, as indeed it is part and
parcel if the Act of ratification of the Constitution, hence not only persuasive but mandatory. In
the face of the incontrovertible fact that the sovereign people have voted against the convening
of the interim National Assembly, and faced with the problem of amending the Constitution in
order precisely to implement the people's rejection of that Assembly, the problem of
constitutional dimension that confronts Us, is how can any such amendment be proposed for
ratification by the people?

To start with, it may not be supposed that just because the office or body designed by the
constitutional convention to perform the constituent function of formulating proposed
amendments has been rendered inoperative by the people themselves, the people have thereby
foreclosed the possibility of amending the Constitution no matter how desirable or necessary
this might be. In this connection, I submit that by the very nature of the office of the Presidency
in the prevailing scheme of government we have - it being the only political department of the
government in existence - it is consistent with basic principles of constitutionalism to
acknowledge the President's authority to perform the constituent function, there being no other
entity or body lodged with the prerogative to exercise such function.
There is another consideration that leads to the same conclusion. It is conceded by petitioners
that with the non-convening of the interim Assembly, the legislative authority has perforce fallen
into the hands of the President, if only to avoid a complete paralysis of law-making and resulting
anarchy and chaos. It is likewise conceded that the provisions of Section 3 (2) of Article XVII
invest the President with legislative power for the duration of the transition period. From these
premises, it is safe to conclude that in effect the President has been substituted by the people
themselves in place of the interim Assembly. Such being the case, the President should be
deemed as having been granted also the cognate prerogative of proposing amendments to the
Constitution. In other words, the force of necessity and the cognate nature of the act justify that
the department exercising the legislative faculty be the one to likewise perform the constituent
function that was attached to the body rendered impotent by the people's mandate. Incidentally,
I reject most vehemently the proposition that the President may propose amendments to the
Constitution in the exercise of his martial law powers. Under any standards, such a suggestion
cannot be reconciled with the Ideal that a Constitution is the free act of the people.

It was suggested during the oral, argument that instead of extending his legislative powers by
proposing the amendment to create a new legislative body, the President should issue a decree
providing for the necessary apportionment of the seats in the Regular National Assembly and
call for an election of the members thereof and thus effect the immediate normalization of the
parliamentary government envisaged in the Constitution. While indeed procedurally feasible, the
suggestion overlooks the imperative need recognized by the constitutional convention as may
be inferred from the obvious purpose of the transitory provisions, for a period of preparation and
acquaintance by all concerned with the unfamiliar distinctive features and practices of the
parliamentary system. Accustomed as we are to the presidential system, the Convention has
seen to it that there should be an interim parliament under the present leadership, which will
take the corresponding measures to effectuate the efficient and smooth transition from the
present system to the new one. I do not believe this pattern set by the convention should be
abandoned.

The alternative of calling a constitutional convention has also been mentioned. But, in the first
place, when it is considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular
National Assembly may call a Constitutional Convention or submit such a call for approval of the
people, Section 15 of Article XVII, in reference to interim National Assembly, does not grant said
body the prerogative of calling a convention, one can readily appreciate that the spirit of the
Constitution does not countenance or favor the calling of a convention during the transition, if
only because such a procedure would be time consuming, cumbersome and expensive. And
when it is further noted that the requirement as to the number of votes needed for a proposal is
only a majority, whereas it is three-fourths in respect to regular Assembly, and, relating this
point to the provision of Section 2 of Article XVI to the effect that all ratification plebiscites must
be held "not later than three months after the approval" of the proposed amendment by the
proposing authority, the adoption of the most simple manner of amending the charter, as that
provided for in the assailed Presidential Decree 1033 suggests itself as the one most in accord
with the intent of the fundamental law.

There is nothing strange in adopting steps not directly based on the letter of the Constitution for
the purpose of amending or changing the same. To cite but one important precedent, as
explained by Mr. Justice Makasiar in his concurring opinion in Javellana 2, the present
Constitution of the United States was neither proposed nor ratified in the manner ordained by
the original charter of that country, the Articles of Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National Assembly has been effectuated
through a referendum-plebiscite in January, 1973, and ratified expressly and impliedly in two
subsequent referenda, those of July, 1973 and February, 1975, why may not a duly held
plebiscite suffice for the purpose of creating a substitute for that Assembly? It should be borne
in mind that after all, as indicated in the whereas of the impugned Presidential Decree, actually,
the proposed amendments were initiated by the barangays and sanggunian members. In other
words, in submitting the amendments for ratification, the President is merely acting as the
conduit thru whom a substantial portion of the people, represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang Barangay, seek the approval of the people as a whole of
the amendments in question. If all these mean that the sovereign people have arrogated unto
themselves the functions relative to the amendment to the Constitution, I would regard myself
as totally devoid of legal standing to question it, having in mind that the most fundamental tenet
on which our whole political structure rests is that "sovereignty resides in the people and all
government authority emanates from them."

In the light of the foregoing considerations, I hold that Presidential Decree No. 1033 does not
infringe the Constitution, if only because the specific provision it is supposed to infringe does not
exist in legal contemplation since it was coevally made inoperative when the people ratified the
Constitution on January 17, 1973. I am fully convinced that there is nothing in the procedure of
amendment contained in said decree that is inconsistent with the fundamental principles of
constitutionalism. On the contrary, I find that the Decree, in issue conforms admirably with the
underlying tenet of our government - the sovereignty and plenary power of the people.

On the issue of whether or not October 16, 1976 is too proximate to enable the people to
sufficiently comprehend the issues and intelligently vote in the referendum and plebiscite set by
Presidential Decree 1033, all I can say is that while perhaps my other colleagues are right in
holding that the period given to the people is adequate, I would leave it to the President to
consider whether or not it would be wiser to extend the same. Just to avoid adverse comments
later I wish the President orders a postponement. But whether such postponement is ordered or
not, date of the referendum- plebiscite anywhere from October 16, 1976 to any other later date,
would be of no vital import.

In conclusion, I vote to dismiss all the three petitions before Us.

MAKASIAR, J., concurring and dissenting:

Since the validity or effectivity of the proposed amendments is to be decided ultimately by the
people in their sovereign capacity, the question is political as the term is defined in Tanada, et
al. vs. Cuenco, et al. (103 Phil. 1051), which is a bar to any judicial inquiry, for the reasons
stated in Our opinion in Javellana, et al. vs. Executive Secretary, et al. (L-36142); Tan, et al. vs.
Executive Secretary, et al. (L,36164); Roxas, et al. vs Executive Secretary, et al. (L-36165);
Monteclaro, etc., et al. vs' Executive Secretary, et al. (@36236); and Ditag et al. vs. Executive
Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The procedure for
amendment is not important Ratification by the people is all that is indispensable to validate an
amendment. Once ratified, the method of making the proposal and the period for submission
become relevant.

The contrary view negates the very essence of a republican democracy - that the people are
sovereign - and renders meaningless the emphatic declaration in the very first provision of
Article II of the 1973 Constitution that the Philippines is a republican state, sovereignty resides
in the people and all government authority emanates from them. It is axiomatic that sovereignty
is illimitable The representatives cannot dictate to the sovereign people. They may guide them;
but they cannot supplant their judgment, Such an opposite view likewise distrusts the wisdom of
the people as much as it despises their intelligence. It evinces a presumptuous pretension to
intellectual superiority. There are thousands upon thousands among the citizenry, who are not
in the public service, who are more learned and better skilled than many of their elected
representatives.

Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62
SCRA 275, 298-302) that the President as enforcer or administrator of martial rule during the
period of martial law can legislate; and that he has the discretion as to when the convene the
interim National Assembly depending on prevailing conditions of peace and order. In view of the
fact that the interim National Assembly has not been convoked in obedience to the desire of the
people clearly expressed in the 1973 referenda, the President therefore remains the lone law-
making authority while martial law subsists. Consequently, he can also exercise the power of
the interim National Assembly to propose amendments to the New Constitution (Sec. 15,,Art.
XVII If, as conceded by petitioner Vicente Guzman (L-44684), former delegate to the 1971
Constitutional Convention which drafted the 1973 Constitution. the President, during the period
of martial law, can call a constitutional convention for the purpose, admittedly a constituent
power, it stands to reason that the President can likewise legally propose amendments to the
fundamental law.

ANTONIO, J., concurring:

At the threshold, it is necessary to clarify what is a "political question". It must be noted that this
device has been utilized by the judiciary "to avoid determining questions it is ill equipped to
determine or that could be settled in any event only with the effective support of the political
branches."1 According to Weston, judges, whether "personal representatives of a truly sovereign
king, or taking their seats as the creatures of a largely popular sovereignty speaking through a
written constitution, derive their power by a delegation, which clearly or obscurely as the case
may be, deliminates and delimits their delegated jurisdiction.* * * Judicial questions * * * are
those which the sovereign has set to be decided in the courts. Political questions, similarly, are
those which the sovereign has entrusted to the so-called political departments of government or
has reserved to be settled by its own extra-government or has reserved to be settled by its own
extra-governmental action."2 Reflecting a similar concept, this Court has defined a "political
question" as a "matter which is to be exercised by the people in their primary political capacity
or that has been specifically delegated to some other department or particular officer of the
government, with discretionary power to act." 3 In other words, it refers to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the legislative or executive branch of
government.4

In determining whether an issue falls within the political question category, the absence of
satisfactory creterion for a judicial determination or the appropriateness of attributing finality to
the action of the political departments of government is a dominant consideration. This was
explained by Justice Brennan in Baker v. Carr,5 thus :
 Prominent on the surface of any case held to involve political question is found a
textually demonstrable constitutional lack of judicially discoverrable and
manageable standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from from multifarious pronouncements by various
departments on one question. . . .

To decide whether a matter has in a measure been committed by the Constitution to another
branch of government or retained be the people to be decided by them in their sovereign
capacity, or whether that branch exceeds whatever authority has been committed, is indeed a
delicate exercise in constitutional interpretation.

In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy of the ratification
by state legislatures of a constitutional amendment is a political question. On the question of
whether the State Legislature could constitutionally relative an amendment, after the same had
been previously rejected by it, it was held that the ultimate authority over the question was in
Congress in the exercise of its control over the promulgation of the adoption of the amendment.
And in connection with the second question of whether the amendment has lost its, vitality
through the lapse of time, the Court held that the question was likewise political, involving "as it
does ... an appraisal of a great variety of relevant conditions, political, social and economic,
which can hardly be said to be within the appropriate range of evidence receivable in a court of
justice and as to which it would be an extravagant extension of juridical authority to assert
judicial notice as the basis of deciding a controversy with respect to the validity of an
amendment actually ratified. On the other hand, these conditions are appropriate for the
consideration of the political departments of the Government. The questions they involve are
essentially political and not justiciable." '

In their concurring opinions, Justices Black, Roberts, Frankfurter and Douglas stressed that:

The Constitution grants Congress exclusive power to control submission off

constitutional amendments. Final determination by Congress their ratification by
three-fourths of the States has taken place 'is conclusive upon the courts.' In the
exercise of that power, Congress, of course, is governed by the Constitution.
However, A whether submission, intervening procedure for Congressional
determination of ratification conforms to the commands of the Constitution, call
for decisions by apolitical department of questions of a t@ which this Court has
frequently designated 'political.' And decision of a 'political question' by the
political department' to which the Constitution has committed it 'conclusively
binds the judges, as well as all other officers, citizens and subjects of ...
government. Proclamation under authority of Congress that an amendment has
been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance
a proclaimed amendment must be accepted as a part of the Constitution,
learning to the judiciary its traditional authority of interpretation. To the extent that
the Court's opinion in the present case even by implieding assumes a power to
make judicial interpretation of the exclusive constitutional authority of Congress
over submission and by ratification of amendments, we are unable to agree.
Relying on this doctrine enunciated in Coleman v. Miller supra this Court, in Mabanag v. Lopez
Vitol, 7 speaking through Mr. Justice Pedro Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification, is a political question. In the Mabang case, the
petitioners sought to prevent the enforcement of a resolution of Congress proposing the "Parity
Amendment" to the Philippine Constitution on the ground that it had not been approved by the
three-fourths vote of all the members of each house as required be Article XV of the 1935
Constitution. It was claimed that three (3) Senators and eight (8) members of the House of
Representatives had been suspended and that their membership was not considered in the
determination of the three- fourths %- ore In dismissing the petition on the ground that the
question of the validity of the proposal was political, the Court stated:

"If ratification of an amendment is a political question, a proposal which leads to ratification has
to be a political question. The question to steps complement each other in a scheme intended to
achieve a single objective. It is to be noted that amendatory process as provided in Section I of
Article XV of the Philippine Constitution 'consists of (only) two distinct parts: proposal and
ratification.' There is no logic in attaching political character to one and withholding that
character from the other. Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and committed to its charge by
the Constitution itself. ..." (At pages 4-5, Italics supplied.)

It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether or not a
Resolution of Congress, acting as a constituent assembly - violates the Constitution is
essentially justiciable, not political, and hence, subject to judicial review." What was involved in
Gonzales, however, was not a proposed What was involved in Gonzales, however, was not a
proposed amendment to the Constitution but an act of Congress, 9 submitting proposed
amendments to the Constitution. Similarly, in Tolentino v. Commission an Elections, 10 what
was involved was not the validity of the proposal to lower the voting age but rather that of the
resolution of the Constitutional Convention submitting the proposal for ratification. The question
was whether piecemeal amendments to the Constitution could submitted to the people for
approval or rejection.

II

Here, the point has been stressed that the President is acting as agent for and in behalf of the
people in proposing the amendment. there can be no question that in the referendums of
January, 1973 and in the subsequent referendums the people had clearly and categorically
rejected the calling of the interim National Assembly. As stated in the main opinion, the Lupang
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga
Barangay, representing 42,000 barangays, the Kabataang Barangay organizations and the
various sectoral groups had proposed the replacement of the interim National Assembly. These
barangays and the Sanggunian assemblies are effective instrumentalities through which the
desires of the people are articulated and expressed. The Batasang Bayan (Legislative Council),
composed of nineteen (19) cabinet members and nine (9) officials with cabinet rank, and ninety-
one (91) members of the Lupang Tagapagpaganap (Executive Committee) of the Katipunan ng
mga Sangguniang Bayani voted in their special session to submit directly to the people in a
plebiscite on October 16, 1976 the afore-mentioned constitutional amendments. Through the
Pambansang Katipunan by Barangay and the Pampurok ng Katipunan Sangguniang Bayan, the
people have expressed their desire not only to abolish the interim National Assembly, but to
replace it with a more representative body acceptable to them in order to effect the desirable
constitutional changes necessary to hasten the political evolution of the government towards the
parliamentary system, while at the same time ensuring that the gains of the New Society, which
are vital to the welfare of the people, shall be safeguarded. The proposed constitutional
amendments, therefore, represent a consensus of the people.

It would be futile to insist that the intemi National Assembly should have been convened to
propose those amendments pursuant to Section 15 of Article XVII of the Constitution. This
Court, in the case of Aquino v. Commission or Elections, 11 took judicial notice of the fact that in
the referendum of January, 1973, a majority of those who approved the new Constitution
conditioned their votes on the demand that the interim National Assembly provided in the
Transitory Provisions should not be and the President "in deference to the sovereign will of the
Filipino people" declared that the convening of said body shall be suspended. 12 As this Court
observed in the Aquino case:

His decision to defer the initial convocation of the byiitttit National Assembly was
supported by the sovereign people at the by referendum in January, 1973 when
the people voted to postpone the convening of the interim National Assembly
until after at least seven (7) years from the approval of the new Constitution. And
the reason why the same question was eliminated from the questions to be
submitted at the referendum on February 27, 1975, is that even some members
of the Congress and delegates of the Constitutional Convention, who are already
byjso ofitto members of the intetini National Assembly are against such inclusion;
because the issue was already bycciled in the January, 1973 referendum by the
sovereign people indicating thereby their disenchantment with any Assembly as
the former Congress failed to institutionalize the reforms they demanded and
wasted public funds through endless debates without relieving the suffering of
the general mass of citizenry (p. 302.) The action of the President in suspending
the convening of the interim National Assembly has met the overwhelming
approval of the people in subsequent referenda.

Since it was the action by the people that gave binding force and effect to the new Constitution,
then it must be accepted as a necessary consequence that their objection against the
immediate convening of the interim National Assembly must be respected as a positive
mandate of the sovereign.

In the Philippines, which is a unitary state, sovereignty "resides in the people and all
government authority emanates from them."13 The term "People" as sovereign is
comprehensive in its context. The people, as sovereign creator of all political reality, is not
merely the enfranchised citizens but the political unity of the people. 14 It connotes, therefore, a
people which exists not only in the urgent present but in the continuum of history. The
assumption that the opinion of The People as voters can be treated as the expression of the
interests of the People as a historic community was, to the distinguished American journalist
and public philosopher, Walter Lipunan, unwarranted.

Because of the discrepancy between The People as Voters and the People as
the corporate nation, the voters have no title to consider themselves the
proprietors of the commonwealth and to claim that their interests are Identical to
the public interest. A prevailing plurality of the voters are not The People. The
claim that they are is a bogus title invoked to justify the usurpation of the
executive power by representative assemblies and the intimidation of public men
by demagogue politicians. In fact demagoguery can be described as the sleight
 of hand by which a faction of The People as voters are invested with the authority
of The People. That is why so many crimes are committed in the People's
name 15

In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to propose
amendments or to amend the Constitution is part of the inherent power of the people as the
repository of sovereignty in a republican state. While Congress may propose amendments to
the Constitution, it acts pursuant to authority granted to it by the people through the Constitution.
Both the power to propose and the authority to approve, therefore, inhere in the people as the
bearer of the Constitution making power.

Absent an interim National Assembly upon whom the people, through the Constitution, have
delegated the authority to exercise constituent powers, it follows from necessity that either the
people should exercise that power themselves or through any other instrumentality they may
choose. For Law, like Nature, abhors a vacuum (natural vacuum abhorret).

The question then is whether the President has authority to act for the people in submitting such
proposals for ratification at the plebiscite of October 16. The political character of the question
is, therefore, particularly manifest, considering that ultimately it is the people who will decide
whether the President has such authority. It certainly involves a matter which is to be exercised
by the people in their sovereign capacity, hence, it is essentially political, not judicial.

While it is true that the constituent power is not to be confuse with legislative power in general
because the prerogative to propose amendments is not embraced within the context of ordinary
lawmaking, it must be noted that the proposals to be submitted for ratification in the forthcoming
referendum are, in the final analysis, actually not of the President but directly of the people
themselves, speaking through their authorized instrumentalities.

As the Chief Justice aptly stated in his concurring opinion in this case:

... The President merely formalized the said proposals in Presidential Decree No.
1033. It being conceded in all quarters that sovereignty resides in the people and
it having been demonstrated that their constituent power to amend the
Constitution has not been delegated by them to any instrumentality of the
Government during the present stage of the transition period of our political
development, the conclusion is ineluctable that their exertion of that residuary
power cannot be vulnerable to any constitutional challenge as beingultravires.
Accordingly, without venturing to rule on whether or not the President is vested
with constituent power - as it does not appear necessary to do so in the premises
- the proposals here challenged, being acts of the sovereign people no less,
cannot be said to be afflicted with unconstitutionality. A fortiori, the concomitant
authority to call a plebiscite and to appropriate funds therefor is even less
vulnerable not only because the President, in exercising said authority, has acted
as a mere ofiffet byf of the people who made the proposals, but likewise because
the said authority is legislative in nature rather than constituent.

This is but a recognition that the People of the Philippines have the inherent, sole
and exclusive right of regulating their own government, and of altering or
abolishing their Constitution whenever it may be necessary to their safety or
happiness. There appears to be no justification, under the existing,
 circumstances, for a Court to create by implication a limitation on - the sovereign
power of the people. As has been clearly explained in a previous case:

There is nothing in the nature of the submission which should cause the free
exercise of it to be obstructed, or that could render it dangerous to the stability of
the government; because the measure derives all its vital force from the action of
the people at the ballot box, and there can never be danger in submitting in an
established form to a free people, the proposition whether they will change their
fundamental law The means provided for the exercise of their Sovereign right of
changing their constitution should receive such a construction as not to trammel
the exercise of the right. Difficulties and embarrassments in its exercise are in
derogation of the right of free government, which is inherent in the people; and
the best security against tumult and revolution is the free and unobstructed
privilege to the people of the State to change their constitution in the mode
prescribed by the instrument.

III

The paramount consideration that impelled Us to arrive at the foregoing opinion is the necessity
of ensuring popular control over the constituent power. "If the people are to control the
constituent power - the power to make and change the fundamental law of the State," observed
Wheeler," "the process of Constitutional change must not be based too heavily upon existing
agencies of government." Indeed, the basic premise of republicanism is that the ordinary citizen,
the common man. can be trusted to determine his political destiny. Therefore, it is time that the
people should be accorded the fullest opportunity to decide the laws that shall provide for their
governance. For in the ultimate analysis, the success of the national endeavor shall depend on
the vision, discipline and I by ininess of the moqqqtai will of every Filipino.

IN VIEW OF THE FOREGOING CONSIDERATIONS, We vote to dismiss the petitions.

Aquino, J., concur.

MUNOZ PALMA, J., dissenting:

I concur fully with the remarkably frank (so characteristic of him) dissenting opinion of my
distinguished colleague, Justice Claudio Teehankee. If I am writing this brief statement it is only
to unburden myself of some thoughts which trouble my mind and leave my conscience with no
rest nor peace.

Generally, one who dissents from a majority view of the Court takes a lonely and at times
precarious road, the burden byeing lightened only by the thought that in this grave task of
administering justice, when matters of conscience are at issue, one must be prepared to
espouse and embrace a rightful cause however unpopular it may be.

1. That sovereignty resides in the people and all government authority emanates from them is a
fundamental, basic principle of government which cannot be disputed, but when the people
have opted to govern themselves under the mantle of a written Constitution, each and every
citizen, from the highest to the lowliest, has the sacred duty to respect and obey the Character
they have so ordained.

By the Constitution which they establish, they not only tie up he hands of their
official agencies, but their own hands as well; and neither the officers of the state,
nor the whole people as an aggregate body, are at liberty to take action in
opposition to this fundamental law. (Cooley's Constitutional Limitations, 7th Ed. p.
56, Italics Our).

The afore-quoted passage from the eminent jurist and author Judge Cooley although based on
declarations of law of more than a century ago, lays down a principle which to my mind is one of
the enduring cornerstones of the Rule of Law. it is a principle with which I have been familiar as
a student of law under the tutelage of revered Professors, Dr. Vicente G. Sinco and Justice Jose
P. Laurel, and which I pray will prevail at all times to ensure the existence of a free, stable, and
civilized society.

The Filipino people,. wanting to ensure to themselves a democratic republican form of

government, have promulgated a Constitution whereby the power to govern themselves has
been entrusted to and distributed among three branches of government; they have also
mandated in clear and unmistakable terms the method by which provisions in their fundamental
Charter may be amended or revised. Having done so, the people are bound by these
constitutional limitations. For while there is no surrender or abdication of the people's ultimate
authority to amend, revise, or adopt a new Constitution, sound reason demands that they keep
themselves within the procedural bounds of the existing fundamental law. The right of the
people to amend or change their Constitution if and when the need arises is not to be denied,
but we assert that absent a revolutionary state or condition in the country the change must be
accomplished through the ordinary, regular and legitimate processes provided for in the
Constitution.'

I cannot subscribe therefore to the view taken by the Solicitor General that the people, being
sovereign, have the authority to amend the Constitution even in a manner different from and
contrary to that expressly provided for in that instrument, and that the amendatory process is
intended more as a limitation of a power rather than a grant of power to a particular agency and
it should not be construed as limiting the ultimate sovereign will of the people to decide on
amendments to the Constitution .2 Such a view will seriously undermine the very existence of a
constitutional government and will permit anarchy and/or mob rule to set afoot and prevail. Was
it the Greek philosopher Plato who warned that the rule of the mob is a prelude to the rule of the
tyrant?

I would use the following excerpt from Bernas, S.J. 'The 1973 Philippine Constitution, Notes and
Cases" as relevant to my point:

. . . the amendatory provisions are called a 'constitution of sovereighty' because

they define the constitutional meaning of 'sovereignty of the people.' Popular
sovereignty, as embodied in the Philippine Constitution, is not extreme popular
sovereignty. As one American writer put it:

A constitution like the American one serves as a basic check upon the popular
will at any given time. It is the distinctive function of such written document to
classify certain things as legal fundamentals; these fundamentals may not be
 changed except by the slow and cumbersome process of amendment. The
people themselves have decided, in constitutional convention assembled, to limit
themselves ana future generations in the exercise of the sovereign power which
they would otherwise possess. And it is precisely such limitation that enables
those subject to governmental authority to appeal from the people drunk to the
people sober in time of excitement and hysteria. The Constitution, in the neat
phrase of the Iowa court, is the protector of the people against injury by the
.people. *

Truly, what need is there for providing in the Constitution a process by which the fundamental
law may be amended if, after all, the people by themselves can set the same at naught even in
times of peace when civil authority reigns supreme? To go along with the respondents' theory in
this regard is to render written Constitutions useless or mere "ropes of sand allowing for a
government of men instead of one of laws. For it cannot be discounted that a situation may
arise where the people are heralded to action at a point of a gun or by the fiery eloquence of a
demagogue, and where passion overpowers reason, and mass action overthrows legal
processes. History has recorded such instances, and I can think of no better example than that
of Jesus Christ of Judea who was followed and loved by the people while curing the sick,
making the lame walk and the blind see, but shortly was condemned by the same people turned
into fanatic rabble crying out "Crucify Him, Crucify Him" upon being incited into action by chief
priests and elders of Jerusalem. Yes, to quote once more from Judge Cooley:

A good Constitution should be beyond the reason of temporary excitement and

popular caprice or passion. It is needed for stability and steadiness; it must yield
to the thought of the people; not to the whim of the people, or the thought
evolved in excitement or hot blood, but the sober second thought, which alone, if
the government is to be sale can be allowed efficiency. .... Changes in
government are to be feared unless the benefit is certain." (quoted in Ellingham
v. Dye, 99 N.E. 1, 15,)3

Crawford v. Gilchrist 64 Fla. 41., 59., So. 963, Ann. Cas. 1914B, 916; State v. Hall, 159 N.W.,
281; Opinion of Marshall, J. in State ex. rel. Poster v. Marcus, 152 N.W., 419;

From Kochier v. Hill, Vol. 15, N.W., 609, we quote:

xxx xxx xxx

It has been said that changes in the constitution may be introduced in disregard
of its provisions; that if the majority of the people desire a change the majority
must be respected, no matter how the change may be effected; and that the
change, if revolution, is peaceful resolution. ...

We fear that the advocates of this new doctrine, in a zeal to accomplish an end
which the majority of the people desire, have looked at but one phase of the
question, and have not fully considered the terrible consequences which would
almost certainly follow a recognition of the doctrine for which they contend. It may
be that the incorporation of this amendment in the constitution, even if the
constitution has to be broken to accomplish it, would not of itself produce any
serious results. But if it should be done by sanctioning the doctrine contended
for, a precedent would be set which would plague the state for all future time. A
 Banquo's ghost would arise at our incantation which would not down at our
bidding.

xxx xxx xxx

We ought to ponder long before we adopt a doctrine so fraught with danger to

republican institutions. ...

x x x           x x x          x x x

Appellants' counsel cite and rely upon section 2, art. 1, of the constitution of the staff This
section is a portion of the bill of rights, and is as follows: 'All political power is inherent in the
people. Government is instituted for the protection, security, and benefit of of the people; and
they have the right at all times to alter or reform the same, whenever the public good may
require.' Abstractly considered, there can bye no doubt of the correctness of the propositions
embraced in this suction. These principles are older than constitutions and older than
governments. The people did not derive the rights referred to by on the constitution. and, in their
nature, thee are such that the people cannot surrender them ... .

2. Presidential Decrees Nos. 991 and 1033 which call for a national referendum-plebiscite on
October 16, 1976 for the purpose, among other things, of amending certain provisions of the
1973 Constitution are null and void as they contravene the express provisions on the amending
process of the 1973 Constitution laid down in Article XVI, Section 1 (1) and Article XVII, Section
15, more particularly the latter which applies during the present transition period. The Opinion of
Justice Teehankee discusses in detail this particular matter.

I would just wish to stress the point that although at present there is no by tterint National
Assembly which may propose amendments to the Constitution, the existence of a so-called
"vacuum" or "hiatus" does not justify a transgression of the constitutional provisions on the
manner of amending the fundamental law. We cannot cure one infirmity - the existence of a
"vacuum" caused by the non-convening of the interim National Assembly - with another infirmity,
that is, doing violence to the Charter.

All great mutations shake and disorder a state. Good does not necessarily
succeed evil; another evil may succeed and a worse. (Am. Law Rev. 1889, p.
311., quoted in Ellingham v. Dye, supra, p. 15)

Respondents contend that the calling of the referendum-plebiscite for the purpose indicated is a
step necessary to restore the state of normalcy in the country. To my mind, the only possible
measure that will lead our country and people to a condition of normalcy is the lifting or ending
of the state of martial law. If I am constrained to make this statement it is because so much
stress was given during the hearings of these cases on this particular point, leaving one with the
impression that for petitioners to contest the holding of the October 16 referendum-plebiscite is
for them to assume a position of blocking or installing the lifting of martial law, which I believe is
unfair to the petitioners. Frankly, I cannot see the connection between the two. My esteemed
colleagues should pardon me therefore if I had ventured to state that the simple solution to the
simple solution to the present dilemma is the lifting of martial law and the implementation of the
constitutional provisions which will usher in the parliamentary form of government ordained in
the Constitution, which, as proclaimed in Proclamation 1102, the people themselves have
ratified.
If the people have indeed ratified the 1973 Constitution, then they are bound by their act and
cannot escape from the pretended unfavorable consequences thereof, the only y being to set in
motion the constitutional machinery by which the supposed desired amendments may properly
be adopted and submitted to the electorate for ratification. Constitutional processes are to be
observed strictly, if we have to maintain and preserve the system of government decreed under
the fundamental Charter. As said by Justice Enrique Fernando in Mutuc vs. Commission on
Elections

... The concept of the Constitution as the fundamental law, setting forth the
criterion for the validity of any public act whether proceeding from the highest
official or the lowest funcitonary, is a postulate of our system of government. That
is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy. ... (36 SCRA, 228, 234, italics
Ours)

A contrary view would lead to disastrous consequences for, in the words of Chief Justice Cox of
the Supreme Court of Indiana in Ellingham v. Dye, (supra, p. 7) liberty and popular sovereignty
are not meant to give rein to passion or thoughtless impulse but to allow the exercise of power
by the people for the general good by tistlercoitaitt restraints of law. 3 . The true question before
Us is is one of power. Does the incumbent President of the Philippines possess constituent
powers? Again, the negative answer is explained in detail in the dissenting opinion of Justice
Teehankee.

Respondents would justify the incumbent President's exercise of constituent powers on theory
that he is vested with legislative powers as held by this Court in Benigno S. Aquino, Jr., et al. vs.
Commission on Elections, et al., L-40004, January 31, 1975. 1 wish to stress that although in
my separate opinion in said case I agreed that Section 3 (2) of the Transitory provisions grants
to the incumbent President legislative powers, I qualified my statement as follows:

.... As to, whether, or not, this unlimited legislative qqqjwwel of the President
continues by exist even after the ratification of the Constitution is a matter which I
am not ready to concede at the moment, and which at any rate I believe is not
essential in resolving this Petition for reasons to be given later. Nonetheless, I
hold the view that the President is empowered to issue proclamations, orders,
decrees, etc. to carry out and implement the objectives of the proclamation of
martial law be it under the 1935 or 1973 Constitution, and for the orderly and
efficient functioning of the government, its instrumentalities, and agencies. This
grant of legislative power is necessary to fill up a vacuum during the transition
period when the interim National Assembly is not yet convened and functioning,
for otherwise, there will be a disruption of official functions resulting in a collapse
of the government and of the existing social order. (62 SCRA, pp. 275,347)

I believe it is not disputed that legislative power is essentially different from constituent power;
one does not encompass the other unless so specified in the Charter, and the 1973 Constitution
contains provisions in this regard. This is well-explained in Justice Teehankee's Opinion. The
state of necessity brought about by the current political situation, invoked by the respondents,
provides no source of power to propose amendments to the existing Constitution. Must we
"bend the Constitution to suit the law of the hour or cure its defects "by inflicting upon it a wound
which nothing can heal commit one assault after the other "until all respect for the fundamental
law is lost and the powers of government are just what those in authority please to call
them?'"5 Or can we now ignore what this Court, speaking through Justice Barredo, said in
Tolentino vs. Comelec:

... let those who would put aside, invoking grounds at best controversial, any
mandate of the fundamental law purportedly by order to attain some laudable
objective bear in mind that someday somehow others with purportedly more
laudable objectives may take advantages of the precedent in continue the
destruction of the Constitution, making those who laid down the precedent of
justifying deviations from the requirements of the Constitution the victims of their
own folly. 6

Respondents emphatically assert that the final word is the people's word and that ultimately it is
in the hands of the people where the final decision rests. (Comment, pp. 18, 19, 22) Granting in
gratia argument that it is so, let it be an expression of the will of the people a normal political
situation and not under the aegis of martial rule for as I have stated in Aquino vs. Comelec, et
al., supra, a referendum (and now a plebiscite) held under a regime of martial law can be of no
far reaching significance because it is being accomplished under an atmosphere or climate of
fear as it entails a wide area of curtailment and infringement of individual rights, such as, human
liberty, property rights, rights of free expression and assembly, protection against unreasonable
searches and seizures, liberty of abode and of travel, and so on.

4. The other issues such as the sufficiency and proper submission of the proposed amendments
for ratification by the people are expounded in Justice Teehankee's Opinion. I wish to stress
indeed that it is incorrect to state that the thrust of the proposed amendments is the abolition of
the interim National Assembly and its substitution with an "interim Batasang Pambansa their in
by in Proposed amendment No. 6 will permit or allow the concentration of power in one man -
the Executive - Prime Minister or President or whatever you may call him - for it gives him
expressly (which the 1973 Constitution or the 1935 Constitution does not) legislative powers
even during the existence of the appropriate legislative body, dependent solely on the
executive's judgment on the existence of a grave emergency or a threat or imminence thereof **

I must be forgiven if, not concerned with the present, I am haunted however by what can
happen in the future, when we shall all be gone. Verily, this is a matter of grave concern which
necessitates full, mature, sober deliberation of the people but which they can do only in a
climate of freedom without the restraints of martial law. I close, remembering what Claro M.
Recto, President of the Constitutional Convention which drafted the 1935 Philippine
Constitution, once said: .

... Nor is it enough that our people possess a written constitution in order that
their government may be called constitutional. To be deserving of this name, and
to drive away all lanirer of anarchy as well as of dictatorship whether by one man
or a few, it is necessary that both the government authorities and the people
faithfully observe and obey the constitution, and that the citizens be duly
conversant not only with their rights but also with their duties...7

Jose P. Laurel who served his people as Justice of the Supreme Court of this country gave this
reminder; the grave and perilous task of halting transgressions and vindicating cherished rights
is reposed mainly oil the Judiciary and therefore let the Courts be the vestal keepers of the
purity and sanctity of our Constitution.' On the basis of the foregoing, I vote to declare
Presidential Decrees Nos. 991 and 1033 unconstitutional and enjoin the implementation thereof.
CONCEPCION JR., J., concurring:

I vote for the dismissal of the petitions.

1. The issue is not political and therefore justiciable.

The term "political question", as this Court has previously defined, refers to those questions
which, under the constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature or executive
branch of the Government. It is concerned with the issues dependent upon the wisdom, not
legality, of a particular measure.1

Here, the question raised is whether the President has authority to propose to the people
amendments to the Constitution which the petitioners claim is vested solely upon the National
Assembly, the constitutional convention called for the purpose, and the by the National
Assembly. This is not a political question since it involves the determination of conflicting claims
of authority under the constitution.

In Gonzales vs. Comelec, 2 this Court, resolving the issue of whether or not a Resolution of
Congress, acting as a constituent assembly, violates the Constitution, ruled that the question is
essentially justiciable, not political, and hence, subject to judicial review.

In Tolentino vs. Comelec 3 this Court finally dispelled all doubts as to its position regarding its
jurisdiction vis-a-vis the constitutionality of the acts of Congress, acting as a constituent
assembly, as well as those of a constitutional convention called for the purpose of proposing
amendments to the constitution. Insofar as observance of constitutional provisions on the
procedure for amending the constitution is concerned, the issue is cognizable by this Court
under its powers of judicial review.

2. As to the merits, a brief backdrop of the decision to hold the referendum-plebiscite will help
resolve the issue. It is to be noted that under the 1973 Constitution, an interim National
Assembly was organized to bring about an orderly transition from the presidential to the
parliamentary system of government.' The people, however, probably distrustful of the members
who are old time politicians and constitutional delegates who had voted themselves by to
membership in the interim National Assembly, voted against the convening of the said interim
assembly for at least seven years thus creating a political stalemate and a consequent delay' in
the transformation of the government into the parliamentary system. To resolve the impasse,
the President, at the instance of the barangays and sanggunian assemblies through their duly
authorized instrumentalities who recommended a study of the feasibility of abolishing and
replacing the by interim National Assembly with another interim body truly representative of the
people in a reformed society, issued Presidential Decree No. 991, on September 2, 1976,
calling for a national referendum on October -16, 1976 to ascertain the wishes of the people as
to the ways and means that may be available to attain the objective; providing for a period of
educational and information campaign on the issues; and establishing the mechanics and
manner for holding thereof. But the people, through their barangays, addressed resolutions to
the Batasang Bayan, expressing their desire to have the constitution amended, thus prompting
the President to issue Presidential Decree No. 1033, stating the questions to @ submitted to the
people in the referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the Constitution was removed from the interim National
Assembly and transferred to the seat of sovereignty itself. Since the Constitution emanates from
the people who are the repository of all political powers, their authority to amend the
Constitution through the means they have adopted, aside from those mentioned in the
Constitution, cannot be gainsaid. Not much reflection is also needed to show that the President
did not exercise his martial law legislative powers when he proposed the amendments to the
Constitution. He was merely acting as an instrument to carry out the will of the people. Neither
could he convene the interim National Assembly, as suggested by the petitioners, without doing
violence to the people's will expressed overwhelmingly when they decided against convening
the interim assembly for at least seven years.

3. The period granted to the people to consider the proposed amendments is reasonably long
and enough to afford intelligent discussion of the issues to be voted upon. PD 991 has required
the barangays to hold assemblies or meetings to discuss and debate on the referendum
questions, which in fact they have been doing. Considering that the proposed amendments
came from the representatives of the people themselves, the people must have already formed
a decision by this time on what stand to take on the proposed amendments come the day for
the plebiscite. Besides, the Constitution itself requires the holding of a plebiscite for the
ratification of an amendment not later than three (3) months after the approval of such
amendment or revision but without setting a definite period within which such plebiscite shall not
be held. From this I can only conclude that the framers of the Constitution desired that only a
short period shall elapse from the approval of such amendment or resolution to its ratification by
the people.
 II. Bicameralism
1. Liang v. People, G.R. No. 125865, 28 January 2000

G.R. No. 125865           January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994,
for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was
charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of
grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was
arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per
criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next
day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs
(DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the
Agreement between the ADB and the Philippine Government regarding the Headquarters of the
ADB (hereinafter Agreement) in the country. Based on the said protocol communication that
petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the
two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA.
When its motion was denied, the prosecution filed a petition for certiorari and mandamus with
the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the
latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration
was denied, petitioner elevated the case to this Court via a petition for review arguing that he is
covered by immunity under the Agreement and that no preliminary investigation was held before
the criminal cases were filed in court.1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered
by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the
DFA's advice and in motu propio dismissing the two criminal cases without notice to the
prosecution, the latter's right to due process was violated. It should be noted that due process is
a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity
petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary
basis that has yet to be presented at the proper time. 1 At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso facto result in the dropping of the
charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges and
immunities:
 a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was
done in "official capacity." It is therefore necessary to determine if petitioner's case falls within
the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut
the DFA protocol and it must be accorded the opportunity to present its controverting evidence,
should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because
our laws do not allow the commission of a crime, such as defamation, in the name of official
duty.3 The imputation of theft is ultra vires and cannot be part of official functions. It is well-
settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad faith or beyond the
scope of his authority or jurisdiction. 4 It appears that even the government's chief legal counsel,
the Solicitor General, does not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the
case of an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions. 5 As already mentioned above, the
commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say
that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as
the one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only
when specifically granted by law.7 The rule on the criminal procedure is clear that no preliminary
investigation is required in cases falling within the jurisdiction of the MeTC. 8 Besides the
absence of preliminary investigation does not affect the court's jurisdiction nor does it impair the
validity of the information or otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

 2. Chavez v. Judicial and Bar Council, G.R. No. 202242, April 16, 2013

G.R. No. 202242               April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner,
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C.
TUPAS, JR., Respondents.

RESOLUTION

MENDOZA, J.:

This resolves the Motion for Reconsideration 1 filed by the Office of the Solicitor General (OSG)
on behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I.
Chavez (petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former
Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his
potential successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether
the first paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1)
member of Congress to sit in the JBC; and 2] if the practice of having two (2) representatives
from each House of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in
the following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and
Bar Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined
to reconstitute itself so that only one (1) member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to
Senate Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral
arguments on August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the
arguments and agreed, in the meantime, to suspend the effects of the second paragraph of the
dispositive portion of the July 17, 2012 Decision which decreed that it was immediately
executory. The decretal portion of the August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within
ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the
second paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads:
"This disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise
of appointing members of the Judiciary has always been the exclusive prerogative of the
executive and legislative branches of the government. Like their progenitor of American origins,
both the Malolos Constitution11 and the 1935 Constitution12 vested the power to appoint the
members of the Judiciary in the President, subject to confirmation by the Commission on
Appointments. It was during these times that the country became witness to the deplorable
practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate
themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in
one body, the appointment of judges and justices ceased to be subject of scrutiny by another
body. The power became exclusive and absolute to the Executive, subject only to the condition
that the appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of
political pressure and partisan activities, 15 the members of the Constitutional Commission saw it
wise to create a separate, competent and independent body to recommend nominees to the
President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment
process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section
8, Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice,
and a representative of the Congress as ex officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit
in the JBC to act as one of the ex-officio members. 16 Pursuant to the constitutional provision that
Congress is entitled to one (1) representative, each House sent a representative to the JBC, not
together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered.1âwphi1 An eighth
member was added to the JBC as the two (2) representatives from Congress began sitting
simultaneously in the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House
of Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss
the petition on the following grounds: 1] that allowing only one representative from Congress in
the JBC would lead to absurdity considering its bicameral nature; 2] that the failure of the
Framers to make the proper adjustment when there was a shift from unilateralism to
bicameralism was a plain oversight; 3] that two representatives from Congress would not
subvert the intention of the Framers to insulate the JBC from political partisanship; and 4] that
the rationale of the Court in declaring a seven-member composition would provide a solution
should there be a stalemate is not exactly correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth
grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the
principal issues covered by the first and second grounds for lack of merit. Significantly, the
conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the
final resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental
powers of government are established, limited and defined and by which those powers are
distributed among the several departments for their safe and useful exercise for the benefit of
the body politic.19 The Framers reposed their wisdom and vision on one suprema lex to be the
ultimate expression of the principles and the framework upon which government and society
were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies
on the basic postulate that the Framers mean what they say. The language used in the
Constitution must be taken to have been deliberately chosen for a definite purpose. Every word
employed in the Constitution must be interpreted to exude its deliberate intent which must be
maintained inviolate against disobedience and defiance. What the Constitution clearly says,
according to its text, compels acceptance and bars modification even by the branch tasked to
interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify
constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular
letter "a" to describe "representative of Congress," the Filipino people through the Framers
intended that Congress be entitled to only one (1) seat in the JBC. Had the intention been
otherwise, the Constitution could have, in no uncertain terms, so provided, as can be read in its
other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as
to be in tune with the shift to bicameralism. One example is Section 4, Article VII, which
provides that a tie in the presidential election shall be broken "by a majority of all the Members
of both Houses of the Congress, voting separately." 20 Another is Section 8 thereof which
requires the nominee to replace the Vice-President to be confirmed "by a majority of all the
Members of both Houses of the Congress, voting separately." 21 Similarly, under Section 18, the
proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may
be revoked or continued by the Congress, voting separately, by a vote of at least a majority of
all its Members."22 In all these provisions, the bicameral nature of Congress was recognized
and, clearly, the corresponding adjustments were made as to how a matter would be handled
and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer
inadvertence, to their decision to shift to a bicameral form of the legislature, is not persuasive
enough. Respondents cannot just lean on plain oversight to justify a conclusion favorable to
them. It is very clear that the Framers were not keen on adjusting the provision on
congressional representation in the JBC because it was not in the exercise of its primary
function – to legislate. JBC was created to support the executive power to appoint, and
Congress, as one whole body, was merely assigned a contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has
two (2) Houses. The need to recognize the existence and the role of each House is essential
considering that the Constitution employs precise language in laying down the functions which
particular House plays, regardless of whether the two Houses consummate an official act by
voting jointly or separately. Whether in the exercise of its legislative23 or its non-legislative
functions such as inter alia, the power of appropriation, 24 the declaration of an existence of a
state of war,25 canvassing of electoral returns for the President and Vice-President,26 and
impeachment,27 the dichotomy of each House must be acknowledged and recognized
considering the interplay between these two Houses. In all these instances, each House is
constitutionally granted with powers and functions peculiar to its nature and with keen
consideration to 1) its relationship with the other chamber; and 2) in consonance with the
principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their
participation in the JBC. No mechanism is required between the Senate and the House of
Representatives in the screening and nomination of judicial officers. Rather, in the creation of
the JBC, the Framers arrived at a unique system by adding to the four (4) regular members,
three (3) representatives from the major branches of government - the Chief Justice as ex-
officio Chairman (representing the Judicial Department), the Secretary of Justice (representing
the Executive Department), and a representative of the Congress (representing the Legislative
Department). The total is seven (7), not eight. In so providing, the Framers simply gave
recognition to the Legislature, not because it was in the interest of a certain constituency, but in
reverence to it as a major branch of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the
JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation.
Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation
come only after it has been demonstrated that application is impossible or inadequate without
them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to
negate the principle of equality among the three branches of government which is enshrined in
the Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single
representation of Congress in the JBC in order to respect and give the right meaning to the
above-quoted provision of the Constitution. (Emphases and underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant,
submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is
intended to curtail the influence of politics in Congress in the appointment of judges, and the
understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two
votes for Congress runs counter to the intendment of the framers. Such interpretation actually
gives Congress more influence in the appointment of judges. Also, two votes for Congress
would increase the number of JBC members to eight, which could lead to voting deadlock by
reason of even-numbered membership, and a clear violation of 7 enumerated members in the
Constitution. (Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7)
representatives coming from different sectors. From the enumeration it is patent that each
category of members pertained to a single individual only. Thus, while we do not lose sight of
the bicameral nature of our legislative department, it is beyond dispute that Art. VIII, Section 8
(1) of the 1987 Constitution is explicit and specific that "Congress" shall have only "xxx a
representative." Thus, two (2) representatives from Congress would increase the number of
JBC members to eight (8), a number beyond what the Constitution has contemplated.
(Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-
Santiago, a former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the
JBC reflects the Commission’s desire "to have in the Council a representation for the major
elements of the community." xxx The ex-officio members of the Council consist of
representatives from the three main branches of government while the regular members are
composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII,
Section 8(1) was to treat each ex-officio member as representing one co-equal branch of
government. xxx Thus, the JBC was designed to have seven voting members with the three ex-
officio members having equal say in the choice of judicial nominees.

xxx

No parallelism can be drawn between the representative of Congress in the JBC and the
exercise by Congress of its legislative powers under Article VI and constituent powers under
Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of
government, is constitutionally treated as another co-equal branch in the matter of its
representative in the JBC. On the other hand, the exercise of legislative and constituent powers
requires the Senate and the House of Representatives to coordinate and act as distinct bodies
in furtherance of Congress’ role under our constitutional scheme. While the latter justifies and, in
fact, necessitates the separateness of the two Houses of Congress as they relate inter se, no
such dichotomy need be made when Congress interacts with the other two co-equal branches
of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the
same weight to considerations that any of its representatives may have regarding aspiring
nominees to the judiciary. The representatives of the Senate and the House of Representatives
act as such for one branch and should not have any more quantitative influence as the other
branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and
principle of equality among the three branches support this conclusion. [Emphases and
underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the
JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the
Senate or the House of Representatives, is constitutionally empowered to represent the entire
Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one
full vote. This pronouncement effectively disallows the scheme of splitting the said vote into half
(1/2), between two representatives of Congress. Not only can this unsanctioned practice cause
disorder in the voting process, it is clearly against the essence of what the Constitution
authorized. After all, basic and reasonable is the rule that what cannot be legally done directly
cannot be done indirectly. To permit or tolerate the splitting of one vote into two or more is
clearly a constitutional circumvention that cannot be countenanced by the Court. Succinctly put,
when the Constitution envisioned one member of Congress sitting in the JBC, it is sensible to
presume that this representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over
the JBC simply because all of the regular members of the JBC are his appointees. The principle
of checks and balances is still safeguarded because the appointment of all the regular members
of the JBC is subject to a stringent process of confirmation by the Commission on
Appointments, which is composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted,
simply because it was only questioned for the first time through the present action, deserves
scant consideration. Well-settled is the rule that acts done in violation of the Constitution no
matter how frequent, usual or notorious cannot develop or gain acceptance under the doctrine
of estoppel or laches, because once an act is considered as an infringement of the Constitution
it is void from the very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not
a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the
doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally
recognized. They are not nullified. This is essential in the interest of fair play. To reiterate the
doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of
equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the
existence of a statute prior to a determination of unconstitutionality is an operative fact and may
have consequences which cannot always be ignored. The past cannot always be erased by a
new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will
impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a
criminal case when a declaration of unconstitutionality would put the accused in double jeopardy
or would put in limbo the acts done by a municipality in reliance upon a law creating it.33
Under the circumstances, the Court finds the exception applicable in this case and holds that
notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its
prior official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the
direct action of the Filipino people, it cannot correct what respondents perceive as a mistake in
its mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the
Constitution, read into the law something that is contrary to its express provisions and justify the
same as correcting a perceived inadvertence. To do so would otherwise sanction the Court
action of making amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus
omissus "a case omitted is to be held as intentionally omitted." 34 "The principle proceeds from a
reasonable certainty that a particular person, object or thing has been omitted from a legislative
enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the
omission even though the omission may have resulted from inadvertence or because the case
in question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the
legislature would have supplied had its attention been called to the omission, as that would be
judicial legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the
Constitution against usurpation. The Court remains steadfast in confining its powers in the
sphere granted by the Constitution itself. Judicial activism should never be allowed to become
judicial exuberance.38 In cases like this, no amount of practical logic or convenience can
convince the Court to perform either an excision or an insertion that will change the manifest
intent of the Framers. To broaden the scope of congressional representation in the JBC is
tantamount to the inclusion of a subject matter which was not included in the provision as
enacted. True to its constitutional mandate, the Court cannot craft and tailor constitutional
provisions in order to accommodate all of situations no matter how ideal or reasonable the
proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17,
2012 Decision of the Court, which reads, "This disposition is immediately executory," is hereby
LIFTED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
 ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

TERESITA J. LEONARDO-DE
ARTURO D. BRION
CASTRO
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, T hereby certify that the conclusions in
the above Resolution had been reached in consultation before the case was assigned to the
writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1
 Rollo, pp. 257-286.

2
 Id. at 287-298.

3
 Entitled "Resolution expressing the sense of the Senate that the Judicial and Bar
Council (JBC) defer the consideration of all nominees and the preparation of the short
list to be submitted to the President for the position of Chief Justice of the Supreme
Court;" id. at 303-304.
4
 Entitled "Resolution expressing anew the sense of the Senate that the Senate and
House of Representatives should have one (1) representative each in the Judicial and
Bar Council (JBC) and that each representative is entitled to a full vote;" id. at 305-307.

5
 Entitled "Resolution to file an urgent motion with the Supreme Court to set for oral
argument the motion for reconsideration filed by the representatives of Congress to the
Judicial and Bar Council (JBC) in the case of Francisco Chavez v. Judicial and Bar
Council, Sen. Francis Joseph G.. Escudero and Rep. Niel Tupas Jr., G.R. No. 2022242
considering the primordial importance of the constitutional issues involved;" id. at 308-
310.

6
 Entitled "Resolution authorizing Senator Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for reconsideration filed by the representative of the
Senate to the Judicial and Bar Council in the case of Francisco Chavez v. Judicial and
Bar Council, Sen. Francis Joseph G. Escudero and Rep. Niel Tupas, Jr.;" id. at 311-312.

7
 Id. at 313-314.

8
 Id. at (318-I)-(318-K).

9
 Id. at 318-J.

10
 Petitioner’s Memorandum, id. at 326-380; Respondents’ Memorandum, id. at 381-424.

11
 Malolos Constitution Article 80 Title X. – The Chief Justice of the Supreme Court and
the Solicitor-General shall be chosen by the National Assembly in concurrence with the
President of the Republic and the Secretaries of the Government, and shall be
absolutely independent of the Legislative and Executive Powers."

12
 1935 Constitution Article VIII, Section 5. – The Members of the Supreme Court and all
judges of inferior courts shall be appointed by the President with the consent of the
Commission on Appointments."

13
 1 Records of the Constitutional Commission Proceedings and Debates, 437.

14
 Section 4 Article X of the 1973 Constitution provides: "The Members of the Supreme
Court and judges of inferior courts shall be appointed by the President."

15
 1 Records, Constitutional Commission, Proceedings and Debates, p. 487.

16
 List of JBC Chairpersons, Ex-Officio and Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the Executive Officer, Judicial and Bar Council, rollo,
pp. 62-63.

17
 Id.

18
 Id. at 80, citing Minutes of the 1st En Banc Executive Meeting, January 12, 2000 and
Minutes of the 12th En Banc Meeting, May 30, 2001.
19
 Malcolm, The Constitutional Law of the Philippine Islands (2nd ed. 1926), p. 26.

20
 1987 Constitution, Article VII, Section 4. – The President and the Vice-President shall
be elected by direct vote of the people for a term of six years which shall begin at noon
on the thirtieth day of June next following the day of the election and shall end at noon of
the same date, six years thereafter. The President shall not be eligible for any re-
election. No person who has succeeded as President and has served as such for more
than four years shall be qualified for election to the same office at any time.

xxx

The person having the highest number of votes shall be proclaimed elected, but
in case two or more shall have an equal and highest number of votes, one of
them shall forthwith be chosen by the vote of a majority of all the Members of
both Houses of the Congress, voting separately. (Emphasis supplied)

x x x.

21
 1987 Constitution, Article VII, Section 9. – Whenever there is a vacancy in the Office of
the Vice-President during the term for which he was elected, the President shall
nominate a Vice-President from among the Members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all the
Members of both Houses of the Congress, voting separately. (Emphasis supplied)

22
 1987 Constitution, Article VII, Section 18. – The President shall be the Commander-in-
Chief of all armed forces of the Philippines and whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety requires it, he may, for a period
not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the Congress
may, in the same manner, extend such proclamation or suspension for a period to be
determined by the Congress, if the invasion or rebellion shall persist and public safety
requires it. (Emphasis supplied)

23
 1987 Constitution, Article VI Section 27(1). – Every bill passed by the Congress shall,
before it becomes a law, be presented to the President. If he approves the same, he
shall sign it; otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its Journal and
proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of
such House shall agree to pass the bill, it shall be sent, together with the objections, to
the other House by which it shall likewise be reconsidered, and if approved by two-thirds
of all the Members of that House, it shall become a law. In all such cases, the votes of
each House shall be determined by yeas or nays, and the names of the Members voting
for or against shall be entered in its Journal. The President shall communicate his veto
of any bill to the House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it.

24
 1987 Constitution, Article VI Section 24. – All appropriation, revenue or tariff bills, bills
authorizing increase of public debt, bills of local application, and private bills shall
originate exclusively in the House of Representatives, but the Senate may propose or
concur with amendments.

25
 1987 Constitution, Article VI Section 23 (1). – The Congress, by a vote of two-thirds of
both Houses in joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.

26
 1987 Constitution, Article VII Section 4. – The returns of every election for President
and Vice-President, duly certified by the board of canvassers of each province or city,
shall be transmitted to the Congress, directed to the President of the Senate. Upon
receipt of the certificates of canvass, the President of the Senate shall, not later than
thirty days after the day of the election, open all certificates in the presence of the
Senate and the House of Representatives in joint public session, and the Congress,
upon determination of the authenticity and due execution thereof in the manner provided
by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but
in case two or more shall have an equal and highest number of votes, one of
them shall forthwith be chosen by the vote of a majority of all the Members of
both Houses of the Congress, voting separately.

27
 1987 Constitution, Article XI Section 3 (1). – The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.

xxx

(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No person shall be convicted
without the concurrence of two-thirds of all the Members of the Senate.

28
 Dated March 27, 2007; Annex "D," rollo, p. 104.

29
 Annex C, id. at 95. Quoting the interpretation of Article VIII, Section (1) of the
Constitution by Fr. Joaquin Bernas in page 984 of his book, The 1987 Constitution of the
Republic of the Philippines, A Commentary. He quoted another author, Hector de Leon,
and portions of the decisions of this Court in Flores v. Drilon, and Escalante v. Santos,
before extensively quoting the Record of the Constitutional Commission of 1986 (pages
444 to 491).

30
 Annex "E," id. at 1205.

31
 Rollo, pp. 91-93.
 32
 G.R. No. 166006, March 14, 2008, 548 SCRA 485.

33
 Id. at 516-517. (Citations omitted.)

34
 Black’s Law Dictionary, Fifth ed., p. 198.

35
 Agpalo, Statutory Construction, 2009 ed., p. 231.

36
 Id., citing Cartwrite v. Cartwrite, 40 A2d 30, 155 ALR 1088 (1944).

37
 Id., Agpalo, p. 232

38
 Dissenting Opinion, Chief Justice Panganiban, Central Bank (Now Bangko Sentral Ng
Pilipinas) Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 148208,
December 15, 2004, 446 SCRA 299, citing Peralta v. COMELEC. No. L-47771, March
11, 1978, 82 SCRA 30, 77, citing concurring and dissenting opinion of former Chief
Justice Fernando, citing Malcolm.

DISSENTING OPINION

ABAD, J.:

On July 17, 2012, the Court rendered a Decision 1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and
declaring that the current numerical composition of the Judicial and Bar Council (JBC) is
unconstitutional. The Court also enjoined the JBC to reconstitute itself so that only one member
of Congress will sit as a representative in its proceedings, in accordance with Section 8(1),
Article VIII of the 1987 Constitution.

On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then conducted and heard the parties in oral
arguments on the following Issues:

1. Whether or not the current practice of the JBC to perform its functions with eight members,
two of whom are members of Congress, runs counter to the letter and spirit of Section 8(1),
Article VIII of the 1987 Constitution.

A. Whether or not the JBC should be composed of seven members only.

B. Whether or not Congress is entitled to more than one seat in the JBC.

C. Assuming Congress is entitled to more than one seat, whether or not each representative of
Congress should be entitled to exercise one whole vote.

I maintain my dissent to the majority opinion now being reconsidered.

To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the
House of Representatives are entitled to one representative each in the JBC, both with the right
to cast one full vote in its deliberations.

At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which
provides that:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice,
and a representative of the Congress as ex officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the
private sector. (Emphasis supplied)

In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the
singular letter "a" to describe "representative of the Congress," the Filipino people through the
framers of the 1987 Constitution intended Congress to just have one representative in the JBC.
The majority opinion added that there could not have been any plain oversight in the wordings
of the provision since the other provisions of the 1987 Constitution were amended accordingly
with the shift to a bicameral legislative body.

The mere fact, however, that adjustments were made in some provisions should not mislead the
Court into concluding that all provisions have been amended to recognize the bicameral nature
of Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a
member of the Constitutional Commission himself, admitted that the committee charged with
making adjustments in the previously passed provisions covering the JBC, failed to consider the
impact of the changed character of the Legislature on the inclusion of "a representative of the
Congress" in the membership of the JBC.3

Indeed, to insist that only one member of Congress from either the Senate or the House of
Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate
and distinct from each other although they are both involved in law-making. Both legislators are
elected differently, maintain separate administrative organizations, and deliberate on laws
independently. In fact, neither the Senate nor the House of Representatives can by itself claim
to represent the Congress.

Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to
just either of the two Houses can be seen from the words that they used in crafting Section
8(1 ). While the provision provides for just "a representative of the Congress," it also provides
that such representation is "ex officio" or "by virtue of one's office, or position."4

Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate
representative to the JBC. In the same way, under the House of Representatives rules, the
Chairperson of its Justice Committee is the House representative to the JBC. Consequently,
there are actually two persons in Congress who hold separate offices or positions with the
attached function of sitting in the JBC. If the Court adheres to a literal translation of Section
8(1 ), no representative from Congress will qualify as "ex officio" member of the JBC. This would
deny Congress the representation that the framers of the 1987 Constitution intended it to have.

Having said that the Senate and the House of Representatives should have one representative
each in the JBC, it is logical to conclude that each should also have the right to cast one full
vote in its deliberations. To split the vote between the two legislators would be an absurdity
since it would diminish their standing and make them second class members of the JBC,
something that the Constitution clearly does not contemplate. Indeed, the JBC abandoned the
half-a-vote practice on January 12, 2000 and recognized the right of both legislators to cast one
full vote each. Only by recognizing this right can the true spirit and reason of Section 8(1) be
attained.

For the above reasons, I vote to GRANT the motion for reconsideration.

ROBERTO A. ABAD
Associate Justice

Footnotes

1
 Rollo, pp. 226-250.

2
 Id. at 257-284.

3
 http://opinion.inquirer.net/31813/jbc-odds-and-ends (last accessed February 15, 2013).

4
 Webster's New World College Dictionary, 3rd Edition, p. 477.

DISSENTING OPINION

LEONEN, J.:

I dissent.

Both the Senate and the House of Representatives must be represented in the Judicial and Bar
Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and
contemporary understanding of our people of the structure of our government. Any other
interpretation diminishes Congress and negates the effectivity of its representation in the
Judicial and Bar Council.

It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to
ensure that the constitutional project ratified by our people is given full effect.

At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which
provides the following:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the
Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of
Justice, and a representative of the Congress as ex officio Members, a representative of the
Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative
of the private sector. (Emphasis provided)

Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on
the article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire
phrase includes the words "representative of Congress" and "ex officio Members." In the context
of the constitutional plan involving a bicameral Congress, these words create ambiguity.

A Bicameral Congress

Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1,
the Constitution provides the following:

The legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives x x x. (Emphasis provided)

Senators are "elected at large by the qualified voters of the Philippines". 1 Members of the House
of Representatives, on the other hand, are elected by legislative districts 2 or through the party
list system.3 The term of a Senator4 is different from that of a Member of the House of
Representatives.5 Therefore, the Senate and the House of Representatives while component
parts of the Congress are not the same in terms of their representation. The very rationale of a
bicameral system is to have the Senators represent a national constituency. Representatives of
the House of Representatives, on the other hand, are dominantly from legislative districts except
for one fifth which are from the party list system.

Each chamber is organized separately.6 The Senate and the House each promulgates their own
rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate
Records of their proceedings.9 The Senate and the House of Representatives discipline their
own respective members.10

To belabor the point: There is no presiding officer for the Congress of the Philippines, but there
is a Senate President and a Speaker of the House of Representatives. There is no single
journal for the Congress of the Philippines, but there is a journal for the Senate and a journal for
the House of Representatives. There is no record of proceedings for the entire Congress of the
Philippines, but there is a Record of proceedings for the Senate and a Record of proceedings
for the House of Representatives. The Congress of the Philippines does not discipline its
members. It is the Senate that promulgates its own rules and disciplines its members. Likewise,
it is the House that promulgates its own rules and disciplines its members.

No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate.
No Member of the House of Representatives reports to the Congress of the Philippines. Rather,
he or she reports to the House of Representatives.

Congress, therefore, is the Senate and the House of Representatives. Congress does not exist
separate from the Senate and the House of Representatives.

Any Senator acting ex officio or as a representative of the Senate must get directions from the
Senate. By constitutional design, he or she cannot get instructions from the House of
Representatives. If a Senator represents the Congress rather than simply the Senate, then he
or she must be open to amend or modify the instructions given to him or her by the Senate if the
House of Representatives’ instructions are different. Yet, the Constitution vests disciplinary
power only on the Senate for any Senator.

The same argument applies to a Member of the House of Representatives.

No Senator may carry instructions from the House of Representatives. No Member of the House
of Representatives may carry instructions from the Senate. Neither Senator nor Member of the
House of Representatives may therefore represent Congress as a whole.

The difference between the Senate and the House of Representative was a subject of
discussion in the Constitutional Commission. In the July 21, 1986 Records of the Constitutional
Commission, Commissioner Jose F. S. Bengzon presented the following argument during the
discussion on bicameralism, on the distinction between Congressmen and Senators, and the
role of the Filipino people in making these officials accountable:

I grant the proposition that the Members of the House of Representatives are closer to the
people that they represent. I grant the proposition that the Members of the House of
Representatives campaign on a one-to-one basis with the people in the barrios and their
constituencies. I also grant the proposition that the candidates for Senator do not have as much
time to mingle around with their constituencies in their respective home bases as the candidates
for the House. I also grant the proposition that the candidates for the Senate go around the
country in their efforts to win the votes of all the members of the electorate at a lesser time than
that given to the candidates for the House of Representatives. But then the lesson of the last 14
years has made us mature in our political thinking and has given us political will and self-
determination. We really cannot disassociate the fact that the Congressman, the Member of the
House of Representatives, no matter how national he would like to think, is very much strongly
drawn into the problems of his local constituents in his own district.

Due to the maturity of the Filipinos for the last 14 years and because of the emergence of
people power, I believe that this so-called people power can be used to monitor not only the
Members of the House of Representatives but also the Members of the Senate. As I said we
may have probably adopted the American formula in the beginning but over these years, I think
we have developed that kind of a system and adopted it to our own needs. So at this point in
time, with people power working, it is not only the Members of the House who can be subjected
to people power but also the Members of the Senate because they can also be picketed and
criticized through written articles and talk shows. And even the people not only from their
constituencies in their respective regions and districts but from the whole country can exercise
people power against the Members of the Senate because they are supposed to represent the
entire country. So while the Members of Congress become unconsciously parochial in their
desire to help their constituencies, the Members of the Senate are there to take a look at all of
these parochial proposals and coordinate them with the national problems. They may be
detached in that sense but they are not detached from the people because they themselves
know and realize that they owe their position not only to the people from their respective
provinces but also to the people from the whole country. So, I say that people power now will be
able to monitor the activities of the Members of the House of Representatives and that very
same people power can be also used to monitor the activities of the Members of the Senate.11

Commissioner Bengzon provided an illustration of the fundamental distinction between the

House of Representatives and the Senate, particularly regarding their respective constituencies
and electorate. These differences, however, only illustrate that the work of the Senate and the
House of Representatives taken together results in a Congress functioning as one branch of
government. Article VI, Section 1, as approved by the Commission, spoke of one Congress
whose powers are vested in both the House of Representatives and the Senate.

Thus, when the Constitution provides that a "representative of Congress" should participate in
the Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the
House or a Member of the House of Representative carrying out instructions from the Senate. It
is not the kind of a single Congress contemplated by our Constitution. The opinion therefore that
a Senator or a Member of the House of Representative may represent the Congress as a whole
is contrary to the intent of the Constitution. It is unworkable.

One mechanism used in the past to work out the consequence of the majority’s opinion is to
allow a Senator and a Member of the House of Representative to sit in the Judicial and Bar
Council but to each allow them only half a vote.

Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of
Justice is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the
private sector, legal academia, and retired justices. Each of these sectors are given equal
importance and rewarded with one whole vote. However, in this view, the Senate is only worth
fifty percent of the wisdom of these sectors. Likewise, the wisdom of the House of
Representatives is only worth fifty percent of these institutions.

This is constitutionally abominable. It is inconceivable that our people, in ratifying the

Constitution granting awesome powers to Congress, intended to diminish its component parts.
After all, they are institutions composed of people who have submitted themselves to the
electorate. In creating shortlists of possible candidates to the judiciary, we can safely suppose
that their input is not less than the input of the professor of law or the member of the Integrated
Bar of the Philippines or the member from the private sector.

The other solution done in the past was to alternate the seat between a Senator and a Member
of the House of Representatives.

To alternate the seat given to Congress between the Senate and the House of Representatives
would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she
represents the Senate and not Congress as a whole. When a Member of the House of
Representative is seated, he or she can only represent Congress as a whole. Thus, alternating
the seat not only diminishes congressional representation; it negates it.

Constitutional Interpretation

The argument that swayed the majority in this case’s original decision was that if those who
crafted our Constitution intended that there be two representatives from Congress, it would not
have used the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of
representatives, the Constitution intends that in the Judicial and Bar Council, there will be
representation from Congress and that it will be "ex officio", i.e., by virtue of their positions or
offices. We note that the provision did not provide for a number of members to the Judicial and
Bar Council. This is unlike the provisions creating many other bodies in the Constitution.12
In other words, we could privilege or start our interpretation only from the preposition "a" and
from there provide a meaning that ensures a difficult and unworkable result -- one which
undermines the concept of a bicameral congress implied in all the other 114 other places in the
Constitution that uses the word "Congress".

Or, we could give the provision a reasonable interpretation that is within the expectations of the
people who ratified the Constitution by also seeing and reading the words "representative of
Congress" and "ex officio."

This proposed interpretation does not violate the basic tenet regarding the authoritativeness of
the text of the Constitution. It does not detract from the text. It follows the canonical requirement
of verba legis. But in doing so, we encounter an ambiguity.

In Macalintal v. Presidential Electoral Tribunal,13 we said:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to
obtain that it should ever be present in the people’s consciousness, its language as much as
possible should be understood in the sense they have in common use. What it says according
to the text of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they say.
Thus these are cases where the need for construction is reduced to a minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be interpreted
in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be
examined in light of the history of the times, and the condition and circumstances surrounding
the framing of the Constitution. In following this guideline, courts should bear in mind the object
sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought
to be prevented or remedied. Consequently, the intent of the framers and the people ratifying
the constitution, and not the panderings of self-indulgent men, should be given effect.

Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We intoned
thus in the landmark case of Civil Liberties Union v. Executive Secretary:

It is a well-established rule in constitutional construction that no one provision of the Constitution

is to be separated from all the others, to be considered alone, but that all the provisions bearing
upon a particular subject are to be brought into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the Constitution and
one section is not to be allowed to defeat another, if by any reasonable construction, the two
can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words
idle and nugatory. (Emphasis provided)

And in Civil Liberties Union v. Executive Secretary,13 we said:

A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in
mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be
prevented or remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby, in order to construe the
whole as to make the words consonant to that reason and calculated to effect that purpose.

The authoritativeness of text is no excuse to provide an unworkable result or one which

undermines the intended structure of government provided in the Constitution. Text is
authoritative, but it is not exhaustive of the entire universe of meaning.

There is no compelling reason why we should blind ourselves as to the meaning of

"representative of Congress" and "ex officio." There is no compelling reason why there should
only be one representative of a bicameral Congress.

Proposed Reasons for Only One Representative of Congress

The first reason to support the need for only one representative of Congress is the belief that
there needs to be an odd number in the Judicial and Bar Council.

This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e.,
a yes or a no. It is in this sense that a tie-breaker will be necessary.

However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to
provide the President with a shortlist of candidates to every judicial position. We take judicial
notice that for vacancies, each member of the Judicial and Bar Council is asked to list at least
three (3) names. All these votes are tallied and those who garner a specific plurality are thus put
on the list and transmitted to the President. There had been no occasion when the Judicial and
Bar Council ever needed to break a tie. The Judicial and Bar Council’s functions proceed
regardless of whether they have seven or eight members.

The second reason that the main opinion accepted as persuasive was the opinion that
Congress does not discharge its function to check and balance the power of both the Judiciary
and the Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue
that the Representative of Congress, who is ex officio, does not need to consult with Congress
as a whole.

This is very perplexing and difficult to accept.

By virtue of the fundamental premise of separation of powers, the appointing power in the
judiciary should be done by the Supreme Court. However, for judicial positions, this is vested in
the Executive. Furthermore, because of the importance of these appointments, the President’s
discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under
the supervision of the Supreme Court but composed of several components.

The Judicial and Bar Council represents the constituents affected by judicial appointments and
by extension, judicial decisions. It provides for those who have some function vis a vis the law
that should be applied and interpreted by our courts. Hence, represented are practicing lawyers
(Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal
academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also
represented in some way are those that will be affected by the interpretation directly (private
sector representative).

Congress is represented for many reasons.

One, it crafts statutes and to that extent may want to ensure that those who are appointed to the
judiciary are familiar with these statutes and will have the competence, integrity, and
independence to read its meaning.

Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress,
therefore, has an interest in the judicial philosophy of those considered for appointment into our
judiciary.

Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders
including that of the President. Thus, it will have greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the independence required of our judges and
justices, the Members of Congress may be able to appreciate the kind of balance that will be
necessary -- the same balance that the President might be able to likewise appreciate -- when
putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance,
they embody it. Senators and Members of the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically submit themselves to the electorate.

It is for these reasons that the Congressional representatives in the Judicial and Bar Council
may be instructed by their respective chambers to consider some principles and directions.
Through resolutions or actions by the Congressional Committees they represent, the JBC
Congressional representatives’ choices may be constrained. Therefore, they do not sit there just
to represent themselves. Again, they are "representatives of Congress" "ex officio".

The third reason to support only one representative of Congress is the belief that there is the
"unmistakable tenor" in the provision in question that one co-equal branch should be
represented only by one Representative.14 It may be true that the Secretary of Justice is the
political alter ego of the President or the Executive. However, Congress as a whole does not
have a political alter ego. In other words, while the Executive may be represented by a single
individual, Congress cannot be represented by an individual. Congress, as stated earlier,
operates through the Senate and the House of Representatives. Unlike the Executive, the
Legislative branch cannot be represented by only one individual.

A Note on the Work of the Constitutional Commission

Time and again, we have clarified the interpretative value to Us of the deliberations of the
Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we
emphasized:

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention ‘are of value as showing the views of the individual members, and as
indicating the reason for their votes, but they give Us no light as to the views of the large
majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the constitution
from what appears upon its face.’The proper interpretation therefore depends more on how
it was understood by the people adopting it than in the framers’ understanding
thereof.15 (Emphasis provided)

Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16

The intention of the framers of the Constitution, even assuming we could discover what it was,
when it is not adequately expressed in the Constitution, that is to say, what they meant when
they did not say it, surely that has no binding force upon us. If we look behind or beyond what
they set down in the document, prying into what else they wrote and what they said,
anything we may find is only advisory. They may sit in at our councils. There is no
reason why we should eavesdrop on theirs.17 (Emphasis provided)

In addition to the interpretative value of the discussion in the Constitutional Commission, we

should always be careful when we quote from their records without understanding their context.

The Committees of the Constitutional Commission were all tasked to finish their reports not later
than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than
August 15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish
their work of formulating and polishing the style of the final draft of the new Constitution
scheduled for submission to the entire membership of the Commission not later than August 25,
1986.20

The Rules of the Constitutional Commission also provided for a process of approving
resolutions and amendments.

Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated
from a committee, the resolution was signed by its chairman. 22 Resolutions were filed with the
Secretary-General.23 The First Reading took place when the titles of the resolutions were read
and referred to the appropriate committee.24

The Committees then submitted a Report on each resolution. 25 The Steering Committee took
charge of including the committee report in the Calendar for Second Reading. 26 The Second
Reading took place on the day set for the consideration of a resolution. 27 The provisions were
read in full with the amendments proposed by the committee, if there were any.28

A motion to close debate took place after three speeches for and two against, or if only one
speech has been raised and none against it.29 The President of the Constitutional Commission
had the prerogative to allow debates among those who had indicated that they intended to be
heard on certain matters.30 After the close of the debate, the Constitutional Commission
proceeded to consider the Committee amendments.31

After a resolution was approved on Second Reading, it was included in the Calendar for Third
Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third
Reading.33 All constitutional proposals approved by the Commission after Third Reading were
referred to the Committees on Sponsorship and Style for collation, organization, and
consolidation into a complete and final draft of the Constitution. 34 The final draft was submitted
to the Commission for the sole purpose of determining whether it reflects faithfully and
accurately the proposals as approved on Second Reading.35

With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as
follows:

On July 10, 1986, the Committee on the Judiciary presented its Report to the
Commission.36 Deliberations then took place on the same day; on July 11, 1986; and on July 14,
1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar
Council.37 The discussion spoke of the Judicial and Bar Council having seven members.

Numerous mentions of the Judicial and Bar Council being comprised of seven members were
also made by Commissioners on July 14, 1986. On the same day, the amended article was
approved by unanimous voting.38

On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place. 39 The
vote was 43 and none against.40

Committee Report No. 22 proposing an article on a National Assembly was reported out by July
21, 1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the
presentation and stated that they had a very difficult decision to make regarding bicameralism
and unicameralism.42 The debate occupied the Commission for the whole day.

Then, a vote on the structure of Congress took place. 43 Forty four (44) commissioners cast their
votes during the roll call.44 The vote was 23 to 22.45

On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing
amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46

On October 9, 1986, the entire Article on the Legislature was approved on Third Reading.47

By October 10, 1986, changes in style on the Article on the Legislature were introduced.48

On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the
President of the Constitutional Commission, Cecilia Munoz-Palma.49

It is apparent that the Constitutional Commission either through the Style and Sponsorship
Committee or the Committees on the Legislature and the Judiciary was not able to amend the
provision concerning the Judicial and Bar Council after the Commission had decided to propose
a bicameral Congress. We can take judicial notice of the chronology of events during the
deliberations of the Constitutional Commission. The chronology should be taken as much as the
substance of discussions exchanged between the Commissioners.

The quotations from the Commissioners mentioned in the main opinion and in the proposed
resolution of the present Motion for Reconsideration should thus be appreciated in its proper
context.
The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10,
1986 and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the
Judiciary. Thus:

MR. RODRIGO: Let me go to another point then.

On page 2, Section 5, there is a novel provision about appointments of members of the

Supreme Court and of judges of lower courts. At present it is the President who appoints them.
If there is a Commission on Appointments, then it is the President with the confirmation of the
Commission on Appointments. In this proposal, we would like to establish a new office, a sort of
a board composed of seven members, called the Judicial and Bar Council. And while the
President will still appoint the members of the judiciary, he will be limited to the recommendees
of this Council.

xxxx

MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints
four of them who are the regular members.

xxxx

MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics. 51

xxxx

It must also be noted that during the same day and in the same discussion, both
Commissioners Rodrigo and Concepcion later on referred to a ‘National Assembly’ and not a
‘Congress,’ as can be seen here:

MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may
enact rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the
Judiciary provides:

The National Assembly may repeal, alter, or supplement the said rules with the advice and
concurrence of the Supreme Court.

MR. CONCEPCION: Yes.

MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter
or supplement the rules concerning the protection and enforcement of constitutional rights,
pleading, etc. — it must have the advice and concurrence of the Supreme Court.

MR. CONCEPCION: That is correct.52

On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when
the exchange noted in the main opinion took place. Thus:

MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as
the provision in the 1935 Constitution, Article VIII, Section 5.
xxxx

If we do not remove the proposed amendment on the creation of the Judicial and Bar Council,
this will be a diminution of the appointing power of the highest magistrate of the land, of the
President of the Philippines elected by all the Filipino people. The appointing power will be
limited by a group of seven people who are not elected by the people but only appointed.

Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional
provisions on appointments. The members of the Judiciary will be segregated from the rest of
the government. Even a municipal judge cannot be appointed by the President except upon
recommendation or nomination of three names by this committee of seven people,
commissioners of the Commission on Elections, the COA and Commission on Civil Service x x
x even ambassadors, generals of the Army will not come under this restriction. Why are we
going to segregate the Judiciary from the rest of our government in the appointment of the high-
ranking officials?

Another reason is that this Council will be ineffective. It will just besmirch the honor of our
President without being effective at all because this Council will be under the influence of the
President. Four out of seven are appointees of the President, and they can be reappointed
when their term ends. Therefore, they would kowtow to the President. A fifth member is the
Minister of Justice, an alter ego of the President. Another member represents the legislature. In
all probability, the controlling party in the legislature belongs to the President and, therefore, this
representative from the National Assembly is also under the influence of the President. And may
I say, Mr. Presiding Officer, that even the Chief Justice of the Supreme Court is an appointee of
the President. So, it is futile; he will be influenced anyway by the President.53

It must again be noted that during this day and period of amendments after the quoted passage
in the Decision, the Commission later on made use of the term ‘National Assembly’ and not
‘Congress’ again:

MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the
last sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the
National Assembly at the opening of each regular session."

May I explain that I have gone over the operations of other deliberative assemblies in some
parts of the world, and I noticed that it is only the Chief Executive or head of state who
addresses the National Assembly at its opening. When we say "opening," we are referring to the
first convening of any national assembly. Hence, when the Chief Executive or head of state
addresses the National Assembly on that occasion, no other speaker is allowed to address the
body.

So I move for the deletion of this last sentence.54

Based on the chronology of events, the discussions cited by the main ponencia took place when
the commissioners were still contemplating a unicameral legislature in the course of this
discussion. Necessarily, only one Representative would be needed to fully effect the
participation of a unicameral legislature. Therefore, any mention of the composition of the JBC
having seven members in the records of the Constitutional Commission, particularly during the
dates cited, was obviously within the context that the Commission had not yet voted and agreed
upon a bicameral legislature.
The composition of the Congress as a bilateral legislature became final only after the JBC
discussions as a seven-member Council indicated in the Records of the Constitutional
Commission took place. This puts into the proper context the recognition by Commissioner
Christian Monsod on July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking
of this group is, that all the provisions that were being drafted up to that time assumed a
unicameral government.55

The repeated mentions of the JBC having seven members as indicated in the Records of the
Constitutional Commission do not justify the points raised by petitioner. This is a situation where
the records of the Constitutional Commission do not serve even as persuasive means to
ascertain intent at least in so far as the intended numbers for the Judicial and Bar Council.
Certainly they are not relevant even to advise us on how Congress is to be represented in that
constitutional organ.

We should never forget that when we interpret the Constitution, we do so with full appreciation
of every part of the text within an entire document understood by the people as they ratified it
and with all its contemporary consequences. As an eminent author in constitutional theory has
observed while going through the various interpretative modes presented in jurisprudence: "x x
x all of the methodologies that will be discussed, properly understood, figure in constitutional
analysis as opportunities: as starting points, constituent parts of complex arguments, or
concluding evocations." 56

Discerning that there should be a Senator and a Member of the House of Representatives that
sit in the Judicial and Bar Council so that Congress can be fully represented ex officio is not
judicial activism. It is in keeping with the constitutional project of a bicameral Congress that is
effective whenever and wherever it is represented. It is in tune with how our people understand
Congress as described in the fundamental law. It is consistent with our duty to read the
authoritative text of the Constitution so that ordinary people who seek to understand this most
basic law through Our decisions would understand that beyond a single isolated text -- even
beyond a prepos1t10n in Article VIII, Section 8 (1 ), our primordial values and principles are
framed, congealed and will be given full effect.

In a sense, we do not just read words in a legal document; we give meaning to a Constitution.

For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack
of merit.

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
 3. Tolentino v. Secretary of Finance, 235 SCRA 630

G.R. No. 115455 August 25, 1994

ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL
REVENUE, respondents.

G.R. No. 115525 August 25, 1994

JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as
Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal
Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.

G.R. No. 115543 August 25, 1994

RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,

vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE
BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.

G.R. No. 115544 August 25, 1994

PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; PUBLISHING

CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON.
ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115754 August 25, 1994

CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,

vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.

G.R. No. 115781 August 25, 1994

KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.

CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM
DEBT COALITION, INC., PHILIPPINE BIBLE SOCIETY, INC., and WIGBERTO
TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.

G.R. No. 115852 August 25, 1994

PHILIPPINE AIRLINES, INC., petitioner,

vs.
THE SECRETARY OF FINANCE, and COMMISSIONER OF INTERNAL
REVENUE, respondents.

G.R. No. 115873 August 25, 1994

COOPERATIVE UNION OF THE PHILIPPINES, petitioners,

vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue,
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON.
ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115931 August 25, 1994

PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and ASSOCIATION OF

PHILIPPINE BOOK-SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V.
CHATO, as the Commissioner of Internal Revenue and HON. GUILLERMO PARAYNO,
JR., in his capacity as the Commissioner of Customs, respondents.

Arturo M. Tolentino for and in his behalf.

Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No. 115525.

Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco.

Villaranza and Cruz for petitioners in G.R. No. 115544.

Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No. 115754.

Salonga, Hernandez & Allado for Freedon From Debts Coalition, Inc. & Phil. Bible Society.

Estelito P. Mendoza for petitioner in G.R. No. 115852.

Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for petitioners in G.R. No.
115873.

R.B. Rodriguez & Associates for petitioners in G.R. No. 115931.

Reve A.V. Saguisag for MABINI.

MENDOZA, J.:

The value-added tax (VAT) is levied on the sale, barter or exchange of goods and properties as
well as on the sale or exchange of services. It is equivalent to 10% of the gross selling price or
gross value in money of goods or properties sold, bartered or exchanged or of the gross
receipts from the sale or exchange of services. Republic Act No. 7716 seeks to widen the tax
base of the existing VAT system and enhance its administration by amending the National
Internal Revenue Code.

These are various suits for certiorari and prohibition, challenging the constitutionality of Republic
Act No. 7716 on various grounds summarized in the resolution of July 6, 1994 of this Court, as
follows:

I. Procedural Issues:

A. Does Republic Act No. 7716 violate Art. VI, § 24 of the Constitution?

B. Does it violate Art. VI, § 26(2) of the Constitution?

C. What is the extent of the power of the Bicameral Conference Committee?

II. Substantive Issues:

A. Does the law violate the following provisions in the Bill of Rights (Art. III)?

1. §1

2. § 4

3. § 5

4. § 10

B. Does the law violate the following other provisions of the Constitution?

1. Art. VI, § 28(1)

2. Art. VI, § 28(3)

These questions will be dealt in the order they are stated above. As will presently be explained
not all of these questions are judicially cognizable, because not all provisions of the Constitution
are self executing and, therefore, judicially enforceable. The other departments of the
government are equally charged with the enforcement of the Constitution, especially the
provisions relating to them.
 I. PROCEDURAL ISSUES

The contention of petitioners is that in enacting Republic Act No. 7716, or the Expanded Value-
Added Tax Law, Congress violated the Constitution because, although H. No. 11197 had
originated in the House of Representatives, it was not passed by the Senate but was simply
consolidated with the Senate version (S. No. 1630) in the Conference Committee to produce the
bill which the President signed into law. The following provisions of the Constitution are cited in
support of the proposition that because Republic Act No. 7716 was passed in this manner, it did
not originate in the House of Representatives and it has not thereby become a law:

Art. VI, § 24: All appropriation, revenue or tariff bills, bills authorizing increase of
the public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or
concur with amendments.

Id., § 26(2): No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies thereof in its final
form have been distributed to its Members three days before its passage, except
when the President certifies to the necessity of its immediate enactment to meet
a public calamity or emergency. Upon the last reading of a bill, no amendment
thereto shall be allowed, and the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the Journal.

It appears that on various dates between July 22, 1992 and August 31, 1993, several
bills 1 were introduced in the House of Representatives seeking to amend certain provisions of
the National Internal Revenue Code relative to the value-added tax or VAT. These bills were
referred to the House Ways and Means Committee which recommended for approval a
substitute measure, H. No. 11197, entitled

AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107,
108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237 AND
238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

The bill (H. No. 11197) was considered on second reading starting November 6, 1993 and, on
November 17, 1993, it was approved by the House of Representatives after third and final
reading.

It was sent to the Senate on November 23, 1993 and later referred by that body to its
Committee on Ways and Means.

On February 7, 1994, the Senate Committee submitted its report recommending approval of S.
No. 1630, entitled

AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 107, 108,
AND 110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND 238 OF TITLE IX,
 AND REPEALING SECTIONS 113, 114 and 116 OF TITLE V, ALL OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES

It was stated that the bill was being submitted "in substitution of Senate Bill No. 1129, taking into
consideration P.S. Res. No. 734 and H.B. No. 11197."

On February 8, 1994, the Senate began consideration of the bill (S. No. 1630). It finished
debates on the bill and approved it on second reading on March 24, 1994. On the same day, it
approved the bill on third reading by the affirmative votes of 13 of its members, with one
abstention.

H. No. 11197 and its Senate version (S. No. 1630) were then referred to a conference
committee which, after meeting four times (April 13, 19, 21 and 25, 1994), recommended that
"House Bill No. 11197, in consolidation with Senate Bill No. 1630, be approved in accordance
with the attached copy of the bill as reconciled and approved by the conferees."

The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE VALUE-ADDED
TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION
AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES," was thereafter approved by the House of Representatives on April 27, 1994 and
by the Senate on May 2, 1994. The enrolled bill was then presented to the President of the
Philippines who, on May 5, 1994, signed it. It became Republic Act No. 7716. On May 12, 1994,
Republic Act No. 7716 was published in two newspapers of general circulation and, on May 28,
1994, it took effect, although its implementation was suspended until June 30, 1994 to allow
time for the registration of business entities. It would have been enforced on July 1, 1994 but its
enforcement was stopped because the Court, by the vote of 11 to 4 of its members, granted a
temporary restraining order on June 30, 1994.

First. Petitioners' contention is that Republic Act No. 7716 did not "originate exclusively" in the
House of Representatives as required by Art. VI, §24 of the Constitution, because it is in fact the
result of the consolidation of two distinct bills, H. No. 11197 and S. No. 1630. In this connection,
petitioners point out that although Art. VI, SS 24 was adopted from the American Federal
Constitution, 2 it is notable in two respects: the verb "shall originate" is qualified in the Philippine
Constitution by the word "exclusively" and the phrase "as on other bills" in the American version
is omitted. This means, according to them, that to be considered as having originated in the
House, Republic Act No. 7716 must retain the essence of H. No. 11197.

This argument will not bear analysis. To begin with, it is not the law — but the revenue bill —
which is required by the Constitution to "originate exclusively" in the House of Representatives.
It is important to emphasize this, because a bill originating in the House may undergo such
extensive changes in the Senate that the result may be a rewriting of the whole. The possibility
of a third version by the conference committee will be discussed later. At this point, what is
important to note is that, as a result of the Senate action, a distinct bill may be produced. To
insist that a revenue statute — and not only the bill which initiated the legislative process
culminating in the enactment of the law — must substantially be the same as the House bill
would be to deny the Senate's power not only to "concur with amendments" but also to "propose
amendments." It would be to violate the coequality of legislative power of the two houses of
Congress and in fact make the House superior to the Senate.
The contention that the constitutional design is to limit the Senate's power in respect of revenue
bills in order to compensate for the grant to the Senate of the treaty-ratifying power 3 and
thereby equalize its powers and those of the House overlooks the fact that the powers being
compared are different. We are dealing here with the legislative power which under the
Constitution is vested not in any particular chamber but in the Congress of the Philippines,
consisting of "a Senate and a House of Representatives." 4 The exercise of the treaty-ratifying
power is not the exercise of legislative power. It is the exercise of a check on the executive
power. There is, therefore, no justification for comparing the legislative powers of the House and
of the Senate on the basis of the possession of such nonlegislative power by the Senate. The
possession of a similar power by the U.S. Senate 5 has never been thought of as giving it more
legislative powers than the House of Representatives.

In the United States, the validity of a provision (§ 37) imposing an ad valorem tax based on the
weight of vessels, which the U.S. Senate had inserted in the Tariff Act of 1909, was upheld
against the claim that the provision was a revenue bill which originated in the Senate in
contravention of Art. I, § 7 of the U.S. Constitution. 6 Nor is the power to amend limited to adding
a provision or two in a revenue bill emanating from the House. The U.S. Senate has gone so far
as changing the whole of bills following the enacting clause and substituting its own versions. In
1883, for example, it struck out everything after the enacting clause of a tariff bill and wrote in its
place its own measure, and the House subsequently accepted the amendment. The U.S.
Senate likewise added 847 amendments to what later became the Payne-Aldrich Tariff Act of
1909; it dictated the schedules of the Tariff Act of 1921; it rewrote an extensive tax revision bill
in the same year and recast most of the tariff bill of 1922. 7 Given, then, the power of the Senate
to propose amendments, the Senate can propose its own version even with respect to bills
which are required by the Constitution to originate in the House.

It is insisted, however, that S. No. 1630 was passed not in substitution of H. No. 11197 but of
another Senate bill (S. No. 1129) earlier filed and that what the Senate did was merely to "take
[H. No. 11197] into consideration" in enacting S. No. 1630. There is really no difference
between the Senate preserving H. No. 11197 up to the enacting clause and then writing its own
version following the enacting clause (which, it would seem, petitioners admit is an amendment
by substitution), and, on the other hand, separately presenting a bill of its own on the same
subject matter. In either case the result are two bills on the same subject.

Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff, or tax
bills, bills authorizing an increase of the public debt, private bills and bills of local application
must come from the House of Representatives on the theory that, elected as they are from the
districts, the members of the House can be expected to be more sensitive to the local needs
and problems. On the other hand, the senators, who are elected at large, are expected to
approach the same problems from the national perspective. Both views are thereby made to
bear on the enactment of such laws.

Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its
receipt of the bill from the House, so long as action by the Senate as a body is withheld pending
receipt of the House bill. The Court cannot, therefore, understand the alarm expressed over the
fact that on March 1, 1993, eight months before the House passed H. No. 11197, S. No. 1129
had been filed in the Senate. After all it does not appear that the Senate ever considered it. It
was only after the Senate had received H. No. 11197 on November 23, 1993 that the process of
legislation in respect of it began with the referral to the Senate Committee on Ways and Means
of H. No. 11197 and the submission by the Committee on February 7, 1994 of S. No. 1630. For
that matter, if the question were simply the priority in the time of filing of bills, the fact is that it
was in the House that a bill (H. No. 253) to amend the VAT law was first filed on July 22, 1992.
Several other bills had been filed in the House before S. No. 1129 was filed in the Senate, and
H. No. 11197 was only a substitute of those earlier bills.

Second. Enough has been said to show that it was within the power of the Senate to propose S.
No. 1630. We now pass to the next argument of petitioners that S. No. 1630 did not pass three
readings on separate days as required by the Constitution 8 because the second and third
readings were done on the same day, March 24, 1994. But this was because on February 24,
1994 9 and again on March 22, 1994, 10 the President had certified S. No. 1630 as urgent. The
presidential certification dispensed with the requirement not only of printing but also that of
reading the bill on separate days. The phrase "except when the President certifies to the
necessity of its immediate enactment, etc." in Art. VI, § 26(2) qualifies the two stated conditions
before a bill can become a law: (i) the bill has passed three readings on separate days and (ii) it
has been printed in its final form and distributed three days before it is finally approved.

In other words, the "unless" clause must be read in relation to the "except" clause, because the
two are really coordinate clauses of the same sentence. To construe the "except" clause as
simply dispensing with the second requirement in the "unless" clause (i.e., printing and
distribution three days before final approval) would not only violate the rules of grammar. It
would also negate the very premise of the "except" clause: the necessity of securing the
immediate enactment of a bill which is certified in order to meet a public calamity or emergency.
For if it is only the printing that is dispensed with by presidential certification, the time saved
would be so negligible as to be of any use in insuring immediate enactment. It may well be
doubted whether doing away with the necessity of printing and distributing copies of the bill
three days before the third reading would insure speedy enactment of a law in the face of an
emergency requiring the calling of a special election for President and Vice-President. Under
the Constitution such a law is required to be made within seven days of the convening of
Congress in emergency session. 11

That upon the certification of a bill by the President the requirement of three readings on
separate days and of printing and distribution can be dispensed with is supported by the weight
of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which,
in consolidation with the Senate version, became Republic Act No. 5440, was passed on
second and third readings in the House of Representatives on the same day (May 14, 1968)
after the bill had been certified by the President as urgent. 12

There is, therefore, no merit in the contention that presidential certification dispenses only with
the requirement for the printing of the bill and its distribution three days before its passage but
not with the requirement of three readings on separate days, also.

It is nonetheless urged that the certification of the bill in this case was invalid because there was
no emergency, the condition stated in the certification of a "growing budget deficit" not being an
unusual condition in this country.

It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis
of the certification. To the contrary, by passing S. No. 1630 on second and third readings on
March 24, 1994, the Senate accepted the President's certification. Should such certification be
now reviewed by this Court, especially when no evidence has been shown that, because S. No.
1630 was taken up on second and third readings on the same day, the members of the Senate
were deprived of the time needed for the study of a vital piece of legislation?

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration
of martial law under Art. VII, § 18, or the existence of a national emergency justifying the
delegation of extraordinary powers to the President under Art. VI, § 23(2), is subject to judicial
review because basic rights of individuals may be at hazard. But the factual basis of presidential
certification of bills, which involves doing away with procedural requirements designed to insure
that bills are duly considered by members of Congress, certainly should elicit a different
standard of review.

Petitioners also invite attention to the fact that the President certified S. No. 1630 and not H. No.
11197. That is because S. No. 1630 was what the Senate was considering. When the matter
was before the House, the President likewise certified H. No. 9210 the pending in the House.

Third. Finally it is contended that the bill which became Republic Act No. 7716 is the bill which
the Conference Committee prepared by consolidating H. No. 11197 and S. No. 1630. It is
claimed that the Conference Committee report included provisions not found in either the House
bill or the Senate bill and that these provisions were "surreptitiously" inserted by the Conference
Committee. Much is made of the fact that in the last two days of its session on April 21 and 25,
1994 the Committee met behind closed doors. We are not told, however, whether the provisions
were not the result of the give and take that often mark the proceedings of conference
committees.

Nor is there anything unusual or extraordinary about the fact that the Conference Committee
met in executive sessions. Often the only way to reach agreement on conflicting provisions is to
meet behind closed doors, with only the conferees present. Otherwise, no compromise is likely
to be made. The Court is not about to take the suggestion of a cabal or sinister motive attributed
to the conferees on the basis solely of their "secret meetings" on April 21 and 25, 1994, nor read
anything into the incomplete remarks of the members, marked in the transcript of stenographic
notes by ellipses. The incomplete sentences are probably due to the stenographer's own
limitations or to the incoherence that sometimes characterize conversations. William Safire
noted some such lapses in recorded talks even by recent past Presidents of the United States.

In any event, in the United States conference committees had been customarily held in
executive sessions with only the conferees and their staffs in attendance. 13 Only in November
1975 was a new rule adopted requiring open sessions. Even then a majority of either chamber's
conferees may vote in public to close the meetings. 14

As to the possibility of an entirely new bill emerging out of a Conference Committee, it has been
explained:

Under congressional rules of procedure, conference committees are not

expected to make any material change in the measure at issue, either by deleting
provisions to which both houses have already agreed or by inserting new
provisions. But this is a difficult provision to enforce. Note the problem when one
house amends a proposal originating in either house by striking out everything
following the enacting clause and substituting provisions which make it an
entirely new bill. The versions are now altogether different, permitting a
conference committee to draft essentially a new bill. . . . 15
The result is a third version, which is considered an "amendment in the nature of a substitute,"
the only requirement for which being that the third version be germane to the subject of the
House and Senate bills. 16

Indeed, this Court recently held that it is within the power of a conference committee to include
in its report an entirely new provision that is not found either in the House bill or in the Senate
bill. 17 If the committee can propose an amendment consisting of one or two provisions, there is
no reason why it cannot propose several provisions, collectively considered as an "amendment
in the nature of a substitute," so long as such amendment is germane to the subject of the bills
before the committee. After all, its report was not final but needed the approval of both houses
of Congress to become valid as an act of the legislative department. The charge that in this
case the Conference Committee acted as a third legislative chamber is thus without any
basis. 18

Nonetheless, it is argued that under the respective Rules of the Senate and the House of
Representatives a conference committee can only act on the differing provisions of a Senate bill
and a House bill, and that contrary to these Rules the Conference Committee inserted
provisions not found in the bills submitted to it. The following provisions are cited in support of
this contention:

Rules of the Senate

Rule XII:

§ 26. In the event that the Senate does not agree with the House of
Representatives on the provision of any bill or joint resolution, the differences
shall be settled by a conference committee of both Houses which shall meet
within ten days after their composition.

The President shall designate the members of the conference committee in

accordance with subparagraph (c), Section 3 of Rule III.

Each Conference Committee Report shall contain a detailed and sufficiently

explicit statement of the changes in or amendments to the subject measure, and
shall be signed by the conferees.

The consideration of such report shall not be in order unless the report has been
filed with the Secretary of the Senate and copies thereof have been distributed to
the Members.

(Emphasis added)

Rules of the House of Representatives

Rule XIV:

§ 85. Conference Committee Reports. — In the event that the House does not
agree with the Senate on the amendments to any bill or joint resolution, the
differences may be settled by conference committees of both Chambers.
 The consideration of conference committee reports shall always be in order,
except when the journal is being read, while the roll is being called or the House
is dividing on any question. Each of the pages of such reports shall be signed by
the conferees. Each report shall contain a detailed, sufficiently explicit statement
of the changes in or amendments to the subject measure.

The consideration of such report shall not be in order unless copies thereof are
distributed to the Members: Provided, That in the last fifteen days of each
session period it shall be deemed sufficient that three copies of the report, signed
as above provided, are deposited in the office of the Secretary General.

(Emphasis added)

To be sure, nothing in the Rules limits a conference committee to a consideration of conflicting

provisions. But Rule XLIV, § 112 of the Rules of the Senate is cited to the effect that "If there is
no Rule applicable to a specific case the precedents of the Legislative Department of the
Philippines shall be resorted to, and as a supplement of these, the Rules contained in
Jefferson's Manual." The following is then quoted from the Jefferson's Manual:

The managers of a conference must confine themselves to the differences

committed to them. . . and may not include subjects not within disagreements,
even though germane to a question in issue.

Note that, according to Rule XLIX, § 112, in case there is no specific rule applicable, resort must
be to the legislative practice. The Jefferson's Manual is resorted to only as supplement. It is
common place in Congress that conference committee reports include new matters which,
though germane, have not been committed to the committee. This practice was admitted by
Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral argument in these cases.
Whatever, then, may be provided in the Jefferson's Manual must be considered to have been
modified by the legislative practice. If a change is desired in the practice it must be sought in
Congress since this question is not covered by any constitutional provision but is only an
internal rule of each house. Thus, Art. VI, § 16(3) of the Constitution provides that "Each House
may determine the rules of its proceedings. . . ."

This observation applies to the other contention that the Rules of the two chambers were
likewise disregarded in the preparation of the Conference Committee Report because the
Report did not contain a "detailed and sufficiently explicit statement of changes in, or
amendments to, the subject measure." The Report used brackets and capital letters to indicate
the changes. This is a standard practice in bill-drafting. We cannot say that in using these marks
and symbols the Committee violated the Rules of the Senate and the House. Moreover, this
Court is not the proper forum for the enforcement of these internal Rules. To the contrary, as we
have already ruled, "parliamentary rules are merely procedural and with their observance the
courts have no concern." 19 Our concern is with the procedural requirements of the Constitution
for the enactment of laws. As far as these requirements are concerned, we are satisfied that
they have been faithfully observed in these cases.

Nor is there any reason for requiring that the Committee's Report in these cases must have
undergone three readings in each of the two houses. If that be the case, there would be no end
to negotiation since each house may seek modifications of the compromise bill. The nature of
the bill, therefore, requires that it be acted upon by each house on a "take it or leave it" basis,
with the only alternative that if it is not approved by both houses, another conference committee
must be appointed. But then again the result would still be a compromise measure that may not
be wholly satisfying to both houses.

Art. VI, § 26(2) must, therefore, be construed as referring only to bills introduced for the first time
in either house of Congress, not to the conference committee report. For if the purpose of
requiring three readings is to give members of Congress time to study bills, it cannot be
gainsaid that H. No. 11197 was passed in the House after three readings; that in the Senate it
was considered on first reading and then referred to a committee of that body; that although the
Senate committee did not report out the House bill, it submitted a version (S. No. 1630) which it
had prepared by "taking into consideration" the House bill; that for its part the Conference
Committee consolidated the two bills and prepared a compromise version; that the Conference
Committee Report was thereafter approved by the House and the Senate, presumably after
appropriate study by their members. We cannot say that, as a matter of fact, the members of
Congress were not fully informed of the provisions of the bill. The allegation that the Conference
Committee usurped the legislative power of Congress is, in our view, without warrant in fact and
in law.

Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must
be resolved in its favor. Our cases 20 manifest firm adherence 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
proposed constitutional amendment was invalid because the requisite votes for its approval had
not been obtained 21 or that certain provisions of a statute had been "smuggled" in the printing of
the bill 22 have moved or persuaded us to look behind the proceedings of a coequal branch of
the government. There is no reason now to depart from this rule.

No claim is here made that the "enrolled bill" rule is absolute. In fact in one case 23 we "went
behind" an enrolled bill and consulted the Journal to determine whether certain provisions of a
statute had been approved by the Senate 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, so that
in effect there was no longer an enrolled bill to consider.

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

Fifth. An additional attack on the formal validity of Republic Act No. 7716 is made by the
Philippine Airlines, Inc., petitioner in G.R. No. 11582, namely, that it violates Art. VI, § 26(1)
which provides that "Every bill passed by Congress shall embrace only one subject which shall
be expressed in the title thereof." It is contended that neither H. No. 11197 nor S. No. 1630
provided for removal of exemption of PAL transactions from the payment of the VAT and that
this was made only in the Conference Committee bill which became Republic Act No. 7716
without reflecting this fact in its title.

The title of Republic Act No. 7716 is:

AN ACT RESTRUCTURING THE VALUE- ADDED TAX (VAT) SYSTEM,

WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND
 FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT
PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, AND FOR OTHER PURPOSES.

Among the provisions of the NIRC amended is § 103, which originally read:

§ 103. Exempt transactions. — The following shall be exempt from the value-

added tax:

....

(q) Transactions which are exempt under special laws or international

agreements to which the Philippines is a signatory. Among the transactions
exempted from the VAT were those of PAL because it was exempted under its
franchise (P.D. No. 1590) from the payment of all "other taxes . . . now or in the
near future," in consideration of the payment by it either of the corporate income
tax or a franchise tax of 2%.

As a result of its amendment by Republic Act No. 7716, § 103 of the NIRC now provides:

§ 103. Exempt transactions. — The following shall be exempt from the value-

added tax:

....

(q) Transactions which are exempt under special laws, except those granted
under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .

The effect of the amendment is to remove the exemption granted to PAL, as far as the VAT is
concerned.

The question is whether this amendment of § 103 of the NIRC is fairly embraced in the title of
Republic Act No. 7716, although no mention is made therein of P.D. No. 1590 as among those
which the statute amends. We think it is, since the title states that the purpose of the statute is
to expand the VAT system, and one way of doing this is to widen its base by withdrawing some
of the exemptions granted before. To insist that P.D. No. 1590 be mentioned in the title of the
law, in addition to § 103 of the NIRC, in which it is specifically referred to, would be to insist that
the title of a bill should be a complete index of its content.

The constitutional requirement that every bill passed by Congress shall embrace only one
subject which shall be expressed in its title is intended to prevent surprise upon the members of
Congress and to inform the people of pending legislation so that, if they wish to, they can be
heard regarding it. If, in the case at bar, petitioner did not know before that its exemption had
been withdrawn, it is not because of any defect in the title but perhaps for the same reason
other statutes, although published, pass unnoticed until some event somehow calls attention to
their existence. Indeed, the title of Republic Act No. 7716 is not any more general than the title
of PAL's own franchise under P.D. No. 1590, and yet no mention is made of its tax exemption.
The title of P.D. No. 1590 is:
 AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC. TO
ESTABLISH, OPERATE, AND MAINTAIN AIR-TRANSPORT SERVICES IN THE
PHILIPPINES AND BETWEEN THE PHILIPPINES AND OTHER COUNTRIES.

The trend in our cases is to construe the constitutional requirement in such a manner that courts
do not unduly interfere with the enactment of necessary legislation and to consider it sufficient if
the title expresses the general subject of the statute and all its provisions are germane to the
general subject thus expressed. 24

It is further contended that amendment of petitioner's franchise may only be made by special
law, in view of § 24 of P.D. No. 1590 which provides:

This franchise, as amended, or any section or provision hereof may only be

modified, amended, or repealed expressly by a special law or decree that shall
specifically modify, amend, or repeal this franchise or any section or provision
thereof.

This provision is evidently intended to prevent the amendment of the franchise by mere
implication resulting from the enactment of a later inconsistent statute, in consideration of the
fact that a franchise is a contract which can be altered only by consent of the parties. Thus
in Manila Railroad Co. v.
Rafferty, 25 it was held that an Act of the U.S. Congress, which provided for the payment of tax
on certain goods and articles imported into the Philippines, did not amend the franchise of
plaintiff, which exempted it from all taxes except those mentioned in its franchise. It was held
that a special law cannot be amended by a general law.

In contrast, in the case at bar, Republic Act No. 7716 expressly amends PAL's franchise (P.D.
No. 1590) by specifically excepting from the grant of exemptions from the VAT PAL's exemption
under P.D. No. 1590. This is within the power of Congress to do under Art. XII, § 11 of the
Constitution, which provides that the grant of a franchise for the operation of a public utility is
subject to amendment, alteration or repeal by Congress when the common good so requires.

II. SUBSTANTIVE ISSUES

A. Claims of Press Freedom, Freedom of Thought and Religious Freedom

The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a nonprofit organization of
newspaper publishers established for the improvement of journalism in the Philippines. On the
other hand, petitioner in G.R. No. 115781, the Philippine Bible Society (PBS), is a nonprofit
organization engaged in the printing and distribution of bibles and other religious articles. Both
petitioners claim violations of their rights under § § 4 and 5 of the Bill of Rights as a result of the
enactment of the VAT Law.

The PPI questions the law insofar as it has withdrawn the exemption previously granted to the
press under § 103 (f) of the NIRC. Although the exemption was subsequently restored by
administrative regulation with respect to the circulation income of newspapers, the PPI presses
its claim because of the possibility that the exemption may still be removed by mere revocation
of the regulation of the Secretary of Finance. On the other hand, the PBS goes so far as to
question the Secretary's power to grant exemption for two reasons: (1) The Secretary of
Finance has no power to grant tax exemption because this is vested in Congress and requires
for its exercise the vote of a majority of all its members 26 and (2) the Secretary's duty is to
execute the law.

§ 103 of the NIRC contains a list of transactions exempted from VAT. Among the transactions
previously granted exemption were:

(f) Printing, publication, importation or sale of books and any newspaper,

magazine, review, or bulletin which appears at regular intervals with fixed prices
for subscription and sale and which is devoted principally to the publication of
advertisements.

Republic Act No. 7716 amended § 103 by deleting ¶ (f) with the result that print media became
subject to the VAT with respect to all aspects of their operations. Later, however, based on a
memorandum of the Secretary of Justice, respondent Secretary of Finance issued Revenue
Regulations No. 11-94, dated June 27, 1994, exempting the "circulation income of print media
pursuant to § 4 Article III of the 1987 Philippine Constitution guaranteeing against abridgment of
freedom of the press, among others." The exemption of "circulation income" has left income
from advertisements still subject to the VAT.

It is unnecessary to pass upon the contention that the exemption granted is beyond the
authority of the Secretary of Finance to give, in view of PPI's contention that even with the
exemption of the circulation revenue of print media there is still an unconstitutional abridgment
of press freedom because of the imposition of the VAT on the gross receipts of newspapers
from advertisements and on their acquisition of paper, ink and services for publication. Even on
the assumption that no exemption has effectively been granted to print media transactions, we
find no violation of press freedom in these cases.

To be sure, we are not dealing here with a statute that on its face operates in the area of press
freedom. The PPI's claim is simply that, as applied to newspapers, the law abridges press
freedom. Even with due recognition of its high estate and its importance in a democratic society,
however, the press is not immune from general regulation by the State. It has been held:

The publisher of a newspaper has no immunity from the application of general

laws. He has no special privilege to invade the rights and liberties of others. He
must answer for libel. He may be punished for contempt of court. . . . Like others,
he must pay equitable and nondiscriminatory taxes on his business. . . . 27

The PPI does not dispute this point, either.

What it contends is that by withdrawing the exemption previously granted to print media
transactions involving printing, publication, importation or sale of newspapers, Republic Act No.
7716 has singled out the press for discriminatory treatment and that within the class of mass
media the law discriminates against print media by giving broadcast media favored treatment.
We have carefully examined this argument, but we are unable to find a differential treatment of
the press by the law, much less any censorial motivation for its enactment. If the press is now
required to pay a value-added tax on its transactions, it is not because it is being singled out,
much less targeted, for special treatment but only because of the removal of the exemption
previously granted to it by law. The withdrawal of exemption is all that is involved in these
cases. Other transactions, likewise previously granted exemption, have been delisted as part of
the scheme to expand the base and the scope of the VAT system. The law would perhaps be
open to the charge of discriminatory treatment if the only privilege withdrawn had been that
granted to the press. But that is not the case.

The situation in the case at bar is indeed a far cry from those cited by the PPI in support of its
claim that Republic Act No. 7716 subjects the press to discriminatory taxation. In the cases
cited, the discriminatory purpose was clear either from the background of the law or from its
operation. For example, in Grosjean v. American Press Co., 28 the law imposed a license tax
equivalent to 2% of the gross receipts derived from advertisements only on newspapers which
had a circulation of more than 20,000 copies per week. Because the tax was not based on the
volume of advertisement alone but was measured by the extent of its circulation as well, the law
applied only to the thirteen large newspapers in Louisiana, leaving untaxed four papers with
circulation of only slightly less than 20,000 copies a week and 120 weekly newspapers which
were in serious competition with the thirteen newspapers in question. It was well known that the
thirteen newspapers had been critical of Senator Huey Long, and the Long-dominated
legislature of Louisiana respondent by taxing what Long described as the "lying newspapers" by
imposing on them "a tax on lying." The effect of the tax was to curtail both their revenue and
their circulation. As the U.S. Supreme Court noted, the tax was "a deliberate and calculated
device in the guise of a tax to limit the circulation of information to which the public is entitled in
virtue of the constitutional guaranties." 29 The case is a classic illustration of the warning that the
power to tax is the power to destroy.

In the other case 30 invoked by the PPI, the press was also found to have been singled out
because everything was exempt from the "use tax" on ink and paper, except the press.
Minnesota imposed a tax on the sales of goods in that state. To protect the sales tax, it enacted
a complementary tax on the privilege of "using, storing or consuming in that state tangible
personal property" by eliminating the residents' incentive to get goods from outside states where
the sales tax might be lower. The Minnesota Star Tribune was exempted from both taxes from
1967 to 1971. In 1971, however, the state legislature amended the tax scheme by imposing the
"use tax" on the cost of paper and ink used for publication. The law was held to have singled out
the press because (1) there was no reason for imposing the "use tax" since the press was
exempt from the sales tax and (2) the "use tax" was laid on an "intermediate transaction rather
than the ultimate retail sale." Minnesota had a heavy burden of justifying the differential
treatment and it failed to do so. In addition, the U.S. Supreme Court found the law to be
discriminatory because the legislature, by again amending the law so as to exempt the first
$100,000 of paper and ink used, further narrowed the coverage of the tax so that "only a
handful of publishers pay any tax at all and even fewer pay any significant amount of tax." 31 The
discriminatory purpose was thus very clear.

More recently, in Arkansas Writers' Project, Inc. v. Ragland, 32 it was held that a law which taxed
general interest magazines but not newspapers and religious, professional, trade and sports
journals was discriminatory because while the tax did not single out the press as a whole, it
targeted a small group within the press. What is more, by differentiating on the basis of contents
(i.e., between general interest and special interests such as religion or sports) the law became
"entirely incompatible with the First Amendment's guarantee of freedom of the press."

These cases come down to this: that unless justified, the differential treatment of the press
creates risks of suppression of expression. In contrast, in the cases at bar, the statute applies to
a wide range of goods and services. The argument that, by imposing the VAT only on print
media whose gross sales exceeds P480,000 but not more than P750,000, the law
discriminates 33 is without merit since it has not been shown that as a result the class subject to
tax has been unreasonably narrowed. The fact is that this limitation does not apply to the press
along but to all sales. Nor is impermissible motive shown by the fact that print media and
broadcast media are treated differently. The press is taxed on its transactions involving printing
and publication, which are different from the transactions of broadcast media. There is thus a
reasonable basis for the classification.

The cases canvassed, it must be stressed, eschew any suggestion that "owners of newspapers
are immune from any forms of ordinary taxation." The license tax in the Grosjean case was
declared invalid because it was "one single in kind, with a long history of hostile misuse against
the freedom of the
press." 34 On the other hand, Minneapolis Star acknowledged that "The First Amendment does
not prohibit all regulation of the press [and that] the States and the Federal Government can
subject newspapers to generally applicable economic regulations without creating constitutional
problems." 35

What has been said above also disposes of the allegations of the PBS that the removal of the
exemption of printing, publication or importation of books and religious articles, as well as their
printing and publication, likewise violates freedom of thought and of conscience. For as the U.S.
Supreme Court unanimously held in Jimmy Swaggart Ministries v. Board of Equalization, 36 the
Free Exercise of Religion Clause does not prohibit imposing a generally applicable sales and
use tax on the sale of religious materials by a religious organization.

This brings us to the question whether the registration provision of the law, 37 although of
general applicability, nonetheless is invalid when applied to the press because it lays a prior
restraint on its essential freedom. The case of American Bible Society v. City of Manila  38 is
cited by both the PBS and the PPI in support of their contention that the law imposes
censorship. There, this Court held that an ordinance of the City of Manila, which imposed a
license fee on those engaged in the business of general merchandise, could not be applied to
the appellant's sale of bibles and other religious literature. This Court relied on Murdock v.
Pennsylvania, 39 in which it was held that, as a license fee is fixed in amount and unrelated to
the receipts of the taxpayer, the license fee, when applied to a religious sect, was actually being
imposed as a condition for the exercise of the sect's right under the Constitution. For that
reason, it was held, the license fee "restrains in advance those constitutional liberties of press
and religion and inevitably tends to suppress their exercise." 40

But, in this case, the fee in § 107, although a fixed amount (P1,000), is not imposed for the
exercise of a privilege but only for the purpose of defraying part of the cost of registration. The
registration requirement is a central feature of the VAT system. It is designed to provide a
record of tax credits because any person who is subject to the payment of the VAT pays an
input tax, even as he collects an output tax on sales made or services rendered. The
registration fee is thus a mere administrative fee, one not imposed on the exercise of a privilege,
much less a constitutional right.

For the foregoing reasons, we find the attack on Republic Act No. 7716 on the ground that it
offends the free speech, press and freedom of religion guarantees of the Constitution to be
without merit. For the same reasons, we find the claim of the Philippine Educational Publishers
Association (PEPA) in G.R. No. 115931 that the increase in the price of books and other
educational materials as a result of the VAT would violate the constitutional mandate to the
government to give priority to education, science and technology (Art. II, § 17) to be untenable.
 

B. Claims of Regressivity, Denial of Due Process, Equal Protection, and Impairment

of Contracts

There is basis for passing upon claims that on its face the statute violates the guarantees of
freedom of speech, press and religion. The possible "chilling effect" which it may have on the
essential freedom of the mind and conscience and the need to assure that the channels of
communication are open and operating importunately demand the exercise of this Court's
power of review.

There is, however, no justification for passing upon the claims that the law also violates the rule
that taxation must be progressive and that it denies petitioners' right to due process and that
equal protection of the laws. The reason for this different treatment has been cogently stated by
an eminent authority on constitutional law thus: "[W]hen freedom of the mind is imperiled by law,
it is freedom that commands a momentum of respect; when property is imperiled it is the
lawmakers' judgment that commands respect. This dual standard may not precisely reverse the
presumption of constitutionality in civil liberties cases, but obviously it does set up a hierarchy of
values within the due process clause." 41

Indeed, the absence of threat of immediate harm makes the need for judicial intervention less
evident and underscores the essential nature of petitioners' attack on the law on the grounds of
regressivity, denial of due process and equal protection and impairment of contracts as a mere
academic discussion of the merits of the law. For the fact is that there have even been no
notices of assessments issued to petitioners and no determinations at the administrative levels
of their claims so as to illuminate the actual operation of the law and enable us to reach sound
judgment regarding so fundamental questions as those raised in these suits.

Thus, the broad argument against the VAT is that it is regressive and that it violates the
requirement that "The rule of taxation shall be uniform and equitable [and] Congress shall
evolve a progressive system of taxation." 42 Petitioners in G.R. No. 115781 quote from a paper,
entitled "VAT Policy Issues: Structure, Regressivity, Inflation and Exports" by Alan A. Tait of the
International Monetary Fund, that "VAT payment by low-income households will be a higher
proportion of their incomes (and expenditures) than payments by higher-income households.
That is, the VAT will be regressive." Petitioners contend that as a result of the uniform 10%
VAT, the tax on consumption goods of those who are in the higher-income bracket, which
before were taxed at a rate higher than 10%, has been reduced, while basic commodities, which
before were taxed at rates ranging from 3% to 5%, are now taxed at a higher rate.

Just as vigorously as it is asserted that the law is regressive, the opposite claim is pressed by
respondents that in fact it distributes the tax burden to as many goods and services as possible
particularly to those which are within the reach of higher-income groups, even as the law
exempts basic goods and services. It is thus equitable. The goods and properties subject to the
VAT are those used or consumed by higher-income groups. These include real properties held
primarily for sale to customers or held for lease in the ordinary course of business, the right or
privilege to use industrial, commercial or scientific equipment, hotels, restaurants and similar
places, tourist buses, and the like. On the other hand, small business establishments, with
annual gross sales of less than P500,000, are exempted. This, according to respondents,
removes from the coverage of the law some 30,000 business establishments. On the other
hand, an occasional paper 43 of the Center for Research and Communication cities a NEDA
study that the VAT has minimal impact on inflation and income distribution and that while
additional expenditure for the lowest income class is only P301 or 1.49% a year, that for a family
earning P500,000 a year or more is P8,340 or 2.2%.

Lacking empirical data on which to base any conclusion regarding these arguments, any
discussion whether the VAT is regressive in the sense that it will hit the "poor" and middle-
income group in society harder than it will the "rich," as the Cooperative Union of the Philippines
(CUP) claims in G.R. No. 115873, is largely an academic exercise. On the other hand, the
CUP's contention that Congress' withdrawal of exemption of producers cooperatives, marketing
cooperatives, and service cooperatives, while maintaining that granted to electric cooperatives,
not only goes against the constitutional policy to promote cooperatives as instruments of social
justice (Art. XII, § 15) but also denies such cooperatives the equal protection of the law is
actually a policy argument. The legislature is not required to adhere to a policy of "all or none" in
choosing the subject of taxation. 44

Nor is the contention of the Chamber of Real Estate and Builders Association (CREBA),
petitioner in G.R. 115754, that the VAT will reduce the mark up of its members by as much as
85% to 90% any more concrete. It is a mere allegation. On the other hand, the claim of the
Philippine Press Institute, petitioner in G.R. No. 115544, that the VAT will drive some of its
members out of circulation because their profits from advertisements will not be enough to pay
for their tax liability, while purporting to be based on the financial statements of the newspapers
in question, still falls short of the establishment of facts by evidence so necessary for
adjudicating the question whether the tax is oppressive and confiscatory.

Indeed, regressivity is not a negative standard for courts to enforce. What Congress is required
by the Constitution to do is to "evolve a progressive system of taxation." This is a directive to
Congress, just like the directive to it to give priority to the enactment of laws for the
enhancement of human dignity and the reduction of social, economic and political inequalities
(Art. XIII, § 1), or for the promotion of the right to "quality education" (Art. XIV, § 1). These
provisions are put in the Constitution as moral incentives to legislation, not as judicially
enforceable rights.

At all events, our 1988 decision in Kapatiran  45 should have laid to rest the questions now raised
against the VAT. There similar arguments made against the original VAT Law (Executive Order
No. 273) were held to be hypothetical, with no more basis than newspaper articles which this
Court found to be "hearsay and [without] evidentiary value." As Republic Act No. 7716 merely
expands the base of the VAT system and its coverage as provided in the original VAT Law,
further debate on the desirability and wisdom of the law should have shifted to Congress.

Only slightly less abstract but nonetheless hypothetical is the contention of CREBA that the
imposition of the VAT on the sales and leases of real estate by virtue of contracts entered into
prior to the effectivity of the law would violate the constitutional provision that "No law impairing
the obligation of contracts shall be passed." It is enough to say that the parties to a contract
cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of
the State. For not only are existing laws read into contracts in order to fix obligations as between
parties, but the reservation of essential attributes of sovereign power is also read into contracts
as a basic postulate of the legal order. The policy of protecting contracts against impairment
presupposes the maintenance of a government which retains adequate authority to secure the
peace and good order of society. 46
In truth, the Contract Clause has never been thought as a limitation on the exercise of the
State's power of taxation save only where a tax exemption has been granted for a valid
consideration. 47 Such is not the case of PAL in G.R. No. 115852, and we do not understand it
to make this claim. Rather, its position, as discussed above, is that the removal of its tax
exemption cannot be made by a general, but only by a specific, law.

The substantive issues raised in some of the cases are presented in abstract, hypothetical form
because of the lack of a concrete record. We accept that this Court does not only adjudicate
private cases; that public actions by "non-Hohfeldian" 48 or ideological plaintiffs are now
cognizable provided they meet the standing requirement of the Constitution; that under Art. VIII,
§ 1, ¶ 2 the Court has a "special function" of vindicating constitutional rights. Nonetheless the
feeling cannot be escaped that we do not have before us in these cases a fully developed
factual record that alone can impart to our adjudication the impact of actuality 49 to insure that
decision-making is informed and well grounded. Needless to say, we do not have power to
render advisory opinions or even jurisdiction over petitions for declaratory judgment. In effect we
are being asked to do what the Conference Committee is precisely accused of having done in
these cases — to sit as a third legislative chamber to review legislation.

We are told, however, that the power of judicial review is not so much power as it is duty
imposed on this Court by the Constitution and that we would be remiss in the performance of
that duty if we decline to look behind the barriers set by the principle of separation of powers.
Art. VIII, § 1, ¶ 2 is cited in support of this view:

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, 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 any branch or
instrumentality of the Government.

To view the judicial power of review as a duty is nothing new. Chief Justice Marshall said so in
1803, to justify the assertion of this power in Marbury v. Madison:

It is emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases must of necessity expound
and interpret that rule. If two laws conflict with each other, the courts must decide
on the operation of each. 50

Justice Laurel echoed this justification in 1936 in Angara v. Electoral Commission:

And when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them. 51

This conception of the judicial power has been affirmed in several

cases 52 of this Court following Angara.
It does not add anything, therefore, to invoke this "duty" to justify this Court's intervention in
what is essentially a case that at best is not ripe for adjudication. That duty must still be
performed in the context of a concrete case or controversy, as Art. VIII, § 5(2) clearly defines
our jurisdiction in terms of "cases," and nothing but "cases." That the other departments of the
government may have committed a grave abuse of discretion is not an independent ground for
exercising our power. Disregard of the essential limits imposed by the case and controversy
requirement can in the long run only result in undermining our authority as a court of law. For,
as judges, what we are called upon to render is judgment according to law, not according to
what may appear to be the opinion of the day.

_______________________________

In the preceeding pages we have endeavored to discuss, within limits, the validity of Republic
Act No. 7716 in its formal and substantive aspects as this has been raised in the various cases
before us. To sum up, we hold:

(1) That the procedural requirements of the Constitution have been complied with by Congress
in the enactment of the statute;

(2) That judicial inquiry whether the formal requirements for the enactment of statutes — beyond
those prescribed by the Constitution — have been observed is precluded by the principle of
separation of powers;

(3) That the law does not abridge freedom of speech, expression or the press, nor interfere with
the free exercise of religion, nor deny to any of the parties the right to an education; and

(4) That, in view of the absence of a factual foundation of record, claims that the law is
regressive, oppressive and confiscatory and that it violates vested rights protected under the
Contract Clause are prematurely raised and do not justify the grant of prospective relief by writ
of prohibition.

WHEREFORE, the petitions in these cases are DISMISSED.

Bidin, Quiason, and Kapunan, JJ., concur.

Separate Opinions

NARVASA, C.J.:

I fully concur with the conclusions set forth in the scholarly opinion of my learned colleague, Mr.
Justice Vicente V. Mendoza. I write this separate opinion to express my own views relative to
the procedural issues raised by the various petitions and death with by some other Members of
the Court in their separate opinions.
By their very nature, it would seem, discussions of constitutional issues prove fertile ground for
a not uncommon phenomenon: debate marked by passionate partisanship amounting
sometimes to impatience with adverse views, an eagerness on the part of the proponents on
each side to assume the role of, or be perceived as, staunch defenders of constitutional
principles, manifesting itself in flights of rhetoric, even hyperbole. The peril in this, obviously, is a
diminution of objectivity — that quality which, on the part of those charged with the duty and
authority of interpreting the fundamental law, is of the essence of their great function. For the
Court, more perhaps than for any other person or group, it is necessary to maintain that
desirable objectivity. It must make certain that on this as on any other occasion, the judicial
function is meticulously performed, the facts ascertained as comprehensively and as accurately
as possible, all the issues particularly identified, all the arguments clearly understood; else, it
may itself be accused, by its own members or by others, of a lack of adherence to, or a careless
observance of, its own procedures, the signatures of its individual members on its enrolled
verdicts notwithstanding.

In the matter now before the Court, and whatever reservations some people may entertain
about their intellectual limitations or moral scruples, I cannot bring myself to accept the thesis
which necessarily implies that the members of our august Congress, in enacting the expanded
VAT law, exposed their ignorance, or indifference to the observance, of the rules of procedure
set down by the Constitution or by their respective chambers, or what is worse, deliberately
ignored those rules for some yet undiscovered purpose nefarious in nature, or at least some
purpose other than the public weal; or that a few of their fellows, acting as a bicameral
conference committee, by devious schemes and cunning maneuvers, and in conspiracy with
officials of the Executive Department and others, succeeded in "pulling the wool over the eyes"
of all their other colleagues and foisting on them a bill containing provisions that neither
chamber of our bicameral legislature conceived or contemplated. This is the thesis that the
petitioners would have this Court approve. It is a thesis I consider bereft of any factual or logical
foundation.

Other than the bare declarations of some of the petitioners, or arguments from the use and
import of the language employed in the relevant documents and records, there is no evidence
before the Court adequate to support a finding that the legislators concerned, whether of the
upper or lower chamber, acted otherwise than in good faith, in the honest discharge of their
functions, in the sincere belief that the established procedures were being regularly observed or,
at least, that there occurred no serious or fatal deviation therefrom. There is no evidence on
which reasonably to rest a conclusion that any executive or other official took part in or unduly
influenced the proceedings before the bicameral conference committee, or that the members of
the latter were motivated by a desire to surreptitiously introduce improper revisions in the bills
which they were required to reconcile, or that after agreement had been reached on the mode
and manner of reconciliation of the "disagreeing provisions," had resorted to stratragems or
employed under-handed ploys to ensure their approval and adoption by either House. Neither is
there any proof that in voting on the Bicameral Conference Committee (BCC) version of the
reconciled bills, the members of the Senate and the House did so in ignorance of, or without
understanding, the contents thereof or the bills therein reconciled.

Also unacceptable is the theory that since the Constitution requires appropriation and revenue
bills to originate exclusively in the House of Representatives, it is improper if not unconstitutional
for the Senate to formulate, or even think about formulating, its own draft of this type of measure
in anticipation of receipt of one transmitted by the lower Chamber. This is specially cogent as
regards much-publicized suggestions for legislation (like the expanded VAT Law) emanating
from one or more legislators, or from the Executive Department, or the private sector, etc. which
understandably could be expected to forthwith generate much Congressional cogitation.

Exclusive origination, I submit, should have no reference to time of conception. As a practical

matter, origination should refer to the affirmative act which effectively puts the bicameral
legislative procedure in motion, i.e., the transmission by one chamber to the other of a bill for its
adoption. This is the purposeful act which sets the legislative machinery in operation to
effectively lead to the enactment of a statute. Until this transmission takes place, the formulation
and discussions, or the reading for three or more times of proposed measures in either
chamber, would be meaningless in the context of the activity leading towards concrete
legislation. Unless transmitted to the other chamber, a bill prepared by either house cannot
possibly become law. In other words, the first affirmative, efficacious step, the operative act as it
were, leading to actual enactment of a statute, is the transmission of a bill from one house to the
other for action by the latter. This is the origination that is spoken of in the Constitution in its
Article VI, Section 24, in reference to appropriation, revenue, or tariff bills, etc.

It may be that in the Senate, revenue or tax measures are discussed, even drafted, and this
before a similar activity takes place in the House. This is of no moment, so long as those
measures or bill remain in the Senate and are not sent over the House. There is no origination
of revenue or tax measures by the Senate in this case. However, once the House completes the
drawing up of a similar tax measure in accordance with the prescribed procedure, ven if this is
done subsequent to the Senate’s own measure — indeed, even if this be inspired by information
that measure of the Senate — and after third reading transmits its bill to the Senate, there is
origination by (or in) the House within the contemplation of the Constitution.

So it is entirely possible, as intimated, that in expectation of the receipt of a revenue or tax bill
from the House of Representatives, the Senate commences deliberations on its own concept of
such a legislative measure. This, possibly to save time, so that when the House bill raches it, its
thoughts and views on the matter are already formed and even reduced to writing in the form of
a draft statute. This should not be thought ilegal, as interdicted by the Constitution. What the
Constitution prohibits is for the Senate to begin the legislative process first, by sending its own
revenue bill to the House of Representatives for its consideration and action. This is the
initiation that is prohibited to the Senate.

But petitioners claims that this last was what in fact happened, that the went through the
legislative mill and was finally approved as R.A. No. 7716, was the Senate version, SB 1630.
This is disputed by the respondents. They claim it was House Bill 11197 that, after being
transmitted to the Senate, was referred after first reading to its Committee on Ways and Means;
was reported out by said Committee; underwent second and third readings, was sent to the
bicameral conference committee and then, after appropriate proceedings therein culminating in
extensive amendments thereof, was finally approved by both Houses and became the
Expanded VAT Law.

On whose side does the truth lie? If it is not possible to make that determination from the
pleadings and records before this Court, shall it require evidence to be presented? No, on both
law and principle. The Court will reject a case where the legal issues raised, whatever they may
be, depend for their resolution on still unsettled questions of fact. Petitioners may not, by raising
what are Court to assume the role of a trier of facts. It is on the contrary their obligation, before
raising those questions to this Court, to see to it that all issues of fact are settled in accordance
with the procedures laid down by law for proof of facts. Failing this, petitioners would have only
themselves to blame for a peremptory dismissal.

Now, what is really proven about what happened to HB 11197 after it was transmitted to the
Senate? It seems to be admitted on all sides that after going through first reading, HB 11197
was referred to the Committee on Ways and Means chaired by Senator Ernesto Herrera.

It is however surmised that after this initial step, HB 11197 was never afterwards deliberated on
in the Senate, that it was there given nothing more than a "passing glance," and that it never
went through a proper second and third reading. There is no competent proof to substantiate
this claim. What is certain is that on February 7, 1994, the Senate Committee on Ways and
Means submitted its Report (No. 349) stating that HB 11197 was considered, and
recommending that SB 1630 be approved "in substitution of S.B. No. 1129, taking into
consideration P.S. Res. No. 734 1 and H.B. No. 11197." This Report made known to the Senate,
and clearly indicates, that H.B. No. 11197 was indeed deliberated on by the Committee; in truth,
as Senator Herrera pointed out, the BCC later "agreed to adopt (a broader coverage of the
VAT) which is closely adhering to the Senate version ** ** with some new provisions or
amendments." The plain implication is that the Senate Committee had indeed discussed HB
11197 in comparison with the inconsistent parts of SB 1129 and afterwards proposed
amendments to the former in the form of a new bill (No. 1630) more closely akin to the Senate
bill (No. 1129).

And it is as reasonable to suppose as not that later, during the second and third readings on
March 24, 1994, the Senators, assembled as a body, had before them copies of HB 11197 and
SB 1129, as well as of the Committee's new "SB 1630" that had been recommended for their
approval, or at the very least were otherwise perfectly aware that they were considering the
particular provisions of these bills. That there was such a deliberation in the Senate on HB
11197 in light of inconsistent portions of SB 1630, may further be necessarily inferred from the
request, made by the Senate on the same day, March 24, 1994, for the convocation of a
bicameral conference committee to reconcile "the disagreeing provisions of said bill (SB 1630)
and House Bill No. 11197," a request that could not have been made had not the Senators
more or less closely examined the provisions of HB 11197 and compared them with those of the
counterpart Senate measures.

Were the proceedings before the bicameral conference committee fatally flawed? The
affirmative is suggested because the committee allegedly overlooked or ignored the fact that SB
1630 could not validly originate in the Senate, and that HB 11197 and SB 1630 never properly
passed both chambers. The untenability of these contentions has already been demonstrated.
Now, demonstration of the indefensibility of other arguments purporting to establish the
impropriety of the BCC proceedings will be attempted.

There is the argument, for instance, that the conference committee never used HB 11197 even
as "frame of reference" because it does not appear that the suggestion therefor (made by
House Penal Chairman Exequiel Javier at the bicameral conference committee's meeting on
April 19, 1994, with the concurrence of Senator Maceda) was ever resolved, the minutes being
regrettably vague as to what occurred after that suggestion was made. It is, however, as
reasonable to assume that it was, as it was not, given the vagueness of the minutes already
alluded to. In fact, a reading of the BCC Report persuasively demonstrates that HB 11197 was
not only utilized as a "frame of reference" but actually discussed and deliberated on.
Said BCC Report pertinently states: 2

CONFERENCE COMMITTEE REPORT

The Conference Committee on the disagreeing provisions of House Bill No.

11197, entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 1013, 104, 105, 106, 107,
108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113SD AND 114 OF TITLE V,
ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

and Senate Bill No. 1630 entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 1 106, 107, 108
AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V, ACND 236, 237,
AND 238 OF TITLE IX, AND REPEALING SECTIONS 1113, 114, 116, 119 AND
120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES

having met, after full and free conference, has agreed to recommend and do
hereby recommend to their respective Houses that House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance with the
attached copy of the bill as reconciled and approved by the conferees.

Approved.

The Report, it will be noted, explicitly adverts to House Bill No. 11197, it being in fact mentioned
ahead of Senate Bill No. 1630; graphically shows the very close identity of the subjects of both
bills (indicated in their respective titles); and clearly says that the committee met in "full and free
conference" on the "disagreeing provisions" of both bills (obviously in an effort to reconcile
them); and that reconciliation of said "disagreeing provisions" had been effected, the BCC
having agreed that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees."

It may be concluded, in other words, that, conformably to the procedure provided in the
Constitution with which all the Members of the bicameral conference committee cannot but be
presumed to be familiar, and no proof to the contrary having been adduced on the point, it was
the original bill (HB 11197) which said body had considered and deliberated on in detail,
reconciled or harmonized with SB 1630, and used as basis for drawing up the amended version
eventually reported out and submitted to both houses of Congress.

It is further contended that the BCC was created and convoked prematurely, that SB 1630
should first have been sent to the House of Representatives for concurrence It is maintained, in
other words, that the latter chamber should have refused the Senate request for a bicameral
conference committee to reconcile the "disagreeing provisions" of both bills, and should have
required that SB 1630 be first transmitted to it. This, seemingly, is nit-picking given the urgency
of the proposed legislation as certified by the President (to both houses, in fact). Time was of
the essence, according to the President's best judgment — as regards which absolutely no one
in either chamber of Congress took exception, general acceptance being on the contrary
otherwise manifested — and that judgment the Court will not now question. In light of that
urgency, what was so vital or indispensable about such a transmittal that its absence would
invalidate all else that had been done towards enactment of the law, completely escapes me,
specially considering that the House had immediately acceded without demur to the request for
convocation of the conference committee.

What has just been said should dispose of the argument that the statement in the enrolled bill,
that "This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was
finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2,
1994," necessarily signifies that there were two (2) bills separately introduced, retaining their
independent existence until they reached the bicameral conference committee where they
were consolidated, and therefore, the VAT law did not originate exclusively in the House having
originated in part in the Senate as SB 1630, which bill was not embodied in but merely merged
with HB 11197, retaining its separate identity until it was joined by the BCC with the house
measure. The more logical, and fairer, course is to construe the expression, "consolidation of
House Bill No. 11197 and Senate Bill No. 11630" in the context of accompanying and
contemporaneous statements, i.e.: (a) the declaration in the BCC Report, supra, that the
committee met to reconcile the disagreeing provisions of the two bills, "and after full and free
conference" on the matter, agreed and so recommended that "House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of
the bill as reconciled and approved by the conferees;" and (b) the averment of Senator Herrera,
in the Report of the Ways and Means Committee, supra, that the committee had actually
"considered" (discussed) HB No. 11197 and taken it "into consideration" in recommending that
its own version of the measure (SB 1630) be the one approved.

That the Senate might have drawn up its own version of the expanded VAT bill,
contemporaneously with or even before the House did, is of no moment. It bears repeating in
this connection that no VAT bill ever originated in the Senate; neither its SB 1129 or SB 1630 or
any of its drafts was ever officially transmitted to the House as an initiating bill which, as already
pointed out, is what the Constitution forbids; it was HB 11197 that was first sent to the Senate,
underwent first reading, was referred to Committee on Ways and Means and there discussed in
relation to and in comparison with the counterpart Senate version or versions — the mere
formulation of which was, as also already discussed, not prohibited to it — and afterwards
considered by the Senate itself, also in connection with SB 1630, on second and third readings.
HB 11197 was in the truest sense, the originating bill.

An issue has also arisen respecting the so-called "enrolled bill doctrine" which, it is said,
whatever sacrosanct status it might originally have enjoyed, is now in bad odor with modern
scholars on account of its imputed rigidity and unrealism; it being also submitted that the ruling
in Mabanag v. Lopez Vito (78 Phil. 1) and the cases reaffirming it, is no longer good law, it
being based on a provision of the Code of Civil Procedure 3 long since stricken from the statute
books.

I would myself consider the "enrolled bill" theory as laying down a presumption of so strong a
character as to be well nigh absolute or conclusive, fully in accord with the familiar and
fundamental philosophy of separation of powers. The result, as far as I am concerned, is to
make discussion of the enrolled bill principle purely academic; for as already pointed out, there
is no proof worthy of the name of any facts to justify its reexamination and, possibly, disregard.

The other question is, what is the nature of the power given to a bicameral conference
committee of reconciling differences between, or "disagreeing provisions" in, a bill originating
from the House in relation to amendments proposed by the Senate — whether as regards some
or all of its provisions? Is the mode of reconciliation, subject to fixed procedure and guidelines?
What exactly can the committee do, or not do? Can it only clarify or revise provisions found in
either Senate or House bill? Is it forbidden to propose additional or new provisions, even on
matters necessarily or reasonably connected with or germane to items in the bills being
reconciled?

In answer, it is postulated that the reconciliation function is quite limited. In these cases, the
conference committee should have confined itself to reconciliation of differences or
inconsistencies only by (a) restoring provisions of HB11197 aliminated by SB 1630, or (b)
sustaining wholly or partly the Senate amendments, or (c) as a compromise, agreeing that
neither provisions nor amendments be carried into the final form of HB 11197 for submission to
both chambers of the legislature.

The trouble is, it is theorized, the committee incorporated activities or transactions which were
not within the contemplation of both bills; it made additions and deletions which did not enjoy the
enlightenment of initial committee studies; it exercised what is known as an "ex post veto
power" granted to it by no law, rule or regulation, a power that in truth is denied to it by the rules
of both the Senate and the House. In substantiation, the Senate rule is cited, similar to that of
the House, providing that "differences shall be settled by a conference committee" whose report
shall contain "detailed and sufficiently explicit statement of the changes in or amendments to the
subject measure, ** (to be) signed by the conferees;" as well as the "Jefferson's Manual,"
adopted by the Senate as supplement to its own rules, directing that the managers of the
conference must confine themselves to differences submitted to them; they may not include
subjects not within the disagreements even though germane to a question in issue."

It is significant that the limiting proviso in the relevant rules has been construed and applied as
directory, not mandatory. During the oral argument, counsel for petitioners admitted that the
practice for decades has been for bicameral conference committees to include such provisions
in the reconciled bill as they believed to be germane or necessary and acceptable to both
chambers, even if not within any of the "disagreeing provisions," and the reconciled bills,
containing such provisions had invariably been approved and adopted by both houses of
Congress. It is a practice, they say, that should be stopped. But it is a practice that establishes
in no uncertain manner the prevailing concept in both houses of Congress of the permissible
and acceptable modes of reconciliation that their conference committees may adopt, one whose
undesirability is not all that patent if not, indeed, incapable of unquestionable demonstration.
The fact is that conference committees only take up bills which have already been freely and
fully discussed in both chambers of the legislature, but as to which there is need of
reconciliation in view of "disagreeing provisions" between them; and both chambers entrust the
function of reconciling the bills to their delegates at a conference committee with full awareness,
and tacit consent, that conformably with established practice unquestioningly observed over
many years, new provisions may be included even if not within the "disagreeing provisions" but
of which, together with other changes, they will be given detailed and sufficiently explicit
information prior to voting on the conference committee version.
In any event, a fairly recent decision written for the Court by Senior Associate Justice Isagani A.
Cruz, promulgated on November 11, 1993 (G.R. No. 105371, The Philippine Judges
Association, etc., et al. v. Hon. Pete Prado, etc., et al.), should leave no doubt of the continuing
vitality of the enrolled bill doctrine and give an insight into the nature of the reconciling function
of bicameral conference committees. In that case, a bilateral conference committee was
constituted and met to reconcile Senate Bill No. 720 and House Bill No. 4200. It adopted a
"reconciled" measure that was submitted to and approved by both chambers of Congress and
ultimately signed into law by the President, as R.A. No. 7354. A provision in this statute
(removing the franking privilege from the courts, among others) was assailed as being an invalid
amendment because it was not included in the original version of either the senate or the house
bill and hence had generated no disagreement between them which had to be reconciled. The
Court held:

While it is true that a conference committee is the mechanism for compromising

differences between the Senate and the House, it is not limited in its jurisdiction
to this question. Its broader function is described thus:

A conference committee may deal generally with the subject

matter or it may be limited to resolving the precise differences
between the two houses. Even where the conference committee is
not by rule limited in its jurisdiction, legislative custom severely
limits the freedom with which new subject matter can be inserted
into the conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate. These
excursions occur even where the rules impose strict limitations on
conference committee jurisdiction. This is symptomatic of the
authoritarian power of conference committee (Davies, Legislative
Law and Process: In A Nutshell, 1987 Ed., p. 81).

It is a matter of record that the Conference Committee Report on the bill in

question was returned to and duly approved by both the Senate and the House
of Representatives. Thereafter, the bill was enrolled with its certification by
Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House
of Representatives as having been duly passed by both Houses of Congress. It
was then presented to and approved by President Corazon C. Aquino on April 3,
1992.

Under the doctrine of separation of powers, the Court may not inquire beyond the
certification of the approval of a bill from the presiding officers of
Congress. Casco Philippine Chemical Co. v. Gimenez (7 SCRA 347) laid down
the rule that the enrolled bill is conclusive upon the Judiciary (except in matters
that have to be entered in the journals like the yeas and nays on the final reading
of the bill) (Mabanag v. Lopez Vito, 78 Phil. 1). The journals are themselves also
binding on the Supreme Court, as we held in the old (but still valid) case of U.S.
v. Pons (34 Phil. 729), 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 to violate both the letter and spirit of the organic laws by
which the Philippine Government was brought into existence, to
 invade a coordinate and independent department of the
Government, and to interfere with the legitimate 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 that eventually R.A. No.
7354 and that copies thereof in its final form were not distributed
among the members of each House. Both the enrolled bill and the
legislative journals certify that the measure was duly enacted i.e.,
in accordance with Article VI, Sec. 26 (2) of the Constitution. We
are bound by such official assurances from a coordinate
department of the government, to which we owe, at the very least,
a becoming courtesy.

Withal, an analysis of the changes made by the conference committee in HB 11197 and SB
1630 by way of reconciling their "disagreeing provisions," — assailed by petitioners as
unauthorized or incongrouous — reveals that many of the changes related to actual
"disagreeing provisions," and that those that might perhaps be considered as entirely new are
nevertheless necessarily or logically connected with or germane to particular matters in the bills
being reconciled.

For instance, the change made by the bicameral conference committee (BCC) concerning
amendments to Section 99 of the National Internal Revenue Code (NIRC) — the addition of
"lessors of goods or properties and importers of goods" — is really a reconciliation of
disagreeing provisions, for while HB 11197 mentions as among those subject to tax, "one who
sells, barters, or exchanges goods or properties and any person who leases personal
properties," SB 1630 does not. The change also merely clarifies the provision by providing that
the contemplated taxpayers includes "importers." The revision as regards the amendment to
Section 100, NIRC, is also simple reconciliation, being nothing more than the adoption by the
BCC of the provision in HB 11197 governing the sale of gold to Bangko Sentral, in contrast to
SB 1630 containing no such provision. Similarly, only simple reconciliation was involved as
regards approval by the BCC of a provision declaring as not exempt, the sale of real properties
primarily held for sale to customers or held for lease in the ordinary course of trade or business,
which provision is found in HB 11197 but not in SB 1630; as regards the adoption by the BCC of
a provision on life insurance business, contained in SB 1630 but not found in HB 11197; as
regards adoption by the BCC of the provision in SB 1630 for deferment of tax on certain goods
and services for no longer than 3 years, as to which there was no counterpart provision in SB
11197; and as regards the fixing of a period for the adoption of implementing rules, a period
being prescribed in SB 1630 and none in HB 11197.

In respect of other revisions, it would seem that questions logically arose in the course of the
discussion of specific "disagreeing provisions" to which answers were given which, because
believed acceptable to both houses of Congress, were placed in the BCC draft. For example,
during consideration of radio and television time (Sec. 100, NIRC) dealt with in both House and
Senate bills, the question apparently came up, the relevance of which is apparent on its face,
relative to satellite transmission and cable television time. Hence, a provision in the BCC bill on
the matter. Again, while deliberating on the definition of goods or properties in relation to the
provision subjecting sales thereof to tax, a question apparently arose, logically relevant, about
real properties intended to be sold by a person in economic difficulties, or because he wishes to
buy a car, i.e., not as part of a business, the BCC evidently resolved to clarify the matter by
excluding from the tax, "real properties held primarily for sale to customers or held for lease in
the ordinary course of business." And in the course of consideration of the term, sale or
exchange of services (Sec 102, NIRC), the inquiry most probably was posed as to whether the
term should be understood as including other services: e.g., services of lessors of property
whether real or personal, of warehousemen, of keepers of resthouses, pension houses, inns,
resorts, or of common carriers, etc., and presumably the BCC resolved to clarify the matter by
including the services just mentioned. Surely, changes of this nature are obviously to be
expected in proceedings before bicameral conference committees and may even be considered
grist for their mill, given the history of such BCCs and their general practice here and abroad

In any case, all the changes and revisions, and deletions, made by the conference committee
were all subsequently considered by and approved by both the Senate and the House, meeting
and voting separately. It is an unacceptable theorization, to repeat, that when the BCC report
and its proposed bill were submitted to the Senate and the House, the members thereof did not
bother to read, or what is worse, having read did not understand, what was before them, or did
not realize that there were new provisions in the reconciled version unrelated to any
"disagreeing provisions," or that said new provisions or revisions were effectively concealed
from them

Moreover, it certainly was entirely within the power and prerogative of either legislative chamber
to reject the BCC bill and require the organization of a new bicameral conference committee.
That this option was not exercised by either house only proves that the BCC measure was
found to be acceptable as in fact it was approved and adopted by both chambers.

I vote to DISMISS the petitions for lack of merit.

PADILLA, J.:

The original VAT law and the expanded VAT law

In Kapatiran v. Tan,1 where the ponente was the writer of this Separate Opinion,
a unanimous Supreme Court en banc upheld the validity of the original VAT law (Executive
Order No. 273, approved on 25 July 1987). It will, in my view, be pointless at this time to re-
open arguments advanced in said case as to why said VAT law was invalid, and it will be
equally redundant to re-state the principles laid down by the Court in the same case affirming
the validity of the VAT law as a tax measure. And yet, the same arguments are, in effect,
marshalled against the merits and substance of the expanded VAT law (Rep. Act. No. 7716,
approved on 5 May 1994). The same Supreme Court decision should therefore dispose, in the
main, of such arguments, for the expanded VAT law is predicated basically on the same
principles as the original VAT law, except that now the tax base of the VAT imposition has been
expanded or broadened.

It only needs to be stated — what actually should be obvious — that a tax measure, like the
expanded VAT law (Republic Act. No. 7716), is enacted by Congress and approved by the
President in the exercise of the State's power to tax, which is an attribute of sovereignty. And
while the power to tax, if exercised without limit, is a power to destroy, and should, therefore, not
be allowed in such form, it has to be equally recognized that the power to tax is an essential
right of government. Without taxes, basic services to the people can come to a halt; economic
progress will be stunted, and, in the long run, the people will suffer the pains of stagnation and
retrogression.

Consequently, upon careful deliberation, I have no difficulty in reaching the conclusion that the
expanded VAT law comes within the legitimate power of the state to tax. And as I had occasion
to previously state:

Constitutional Law, to begin with, is concerned with power not political

convenience, wisdom, exigency, or even necessity. Neither the Executive nor the
legislative (Commission on Appointments) can create power where the
Constitution confers none.2

Likewise, in the first VAT case, I said:

In any event, if petitioners seriously believe that the adoption and continued
application of the VAT are prejudicial to the general welfare or the interests of the
majority of the people, they should seek, recourse and relief from the political
branches of the government. The Court, following the time-honored doctrine of
separation of powers, cannot substitute its judgment for that of the President
(and Congress) as to the wisdom, justice and advisability of the adoption of the
VAT. 3

This Court should not, as a rule, concern itself with questions of policy, much less, economic
policy. That is better left to the two (2) political branches of government. That the expanded VAT
law is unwise, unpopular and even anti-poor, among other things said against it, are arguments
and considerations within the realm of policy-debate, which only Congress and the Executive
have the authority to decisively confront, alleviate, remedy and resolve.

II

The procedure followed in the approval of Rep. Act No. 7716

Petitioners however posit that the present case raises a far-reaching constitutional question
which the Court is duty-bound to decide under its expanded jurisdiction in the 1987
Constitution.4 Petitioners more specifically question and impugn the manner by which the
expanded VAT law (Rep. Act. No. 7716) was approved by Congress. They contend that it was
approved in violation of the Constitution from which fact it follows, as a consequence, that the
law is null and void. Main reliance of the petitioners in their assault in Section 24, Art. VI of the
Constitution which provides:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bill of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.

While it should be admitted at the outset that there was no rigorous and strict adherence to the
literal command of the above provision, it may however be said, after careful reflection, that
there was substantial compliance with the provision.
There is no question that House Bill No. 11197 expanding the VAT law originated from the
House of Representatives. It is undeniably a House measure. On the other hand, Senate Bill
No. 1129, also expanding the VAT law, originated from the Senate. It is undeniably a Senate
measure which, in point of time, actually antedated House Bill No. 11197.

But it is of record that when House Bill No. 11197 was, after approval by the House, sent to the
Senate, it was referred to, and considered by the Senate Committee on Ways and Means (after
first reading) together with Senate Bill No. 1129, and the Committee came out with Senate Bill
No. 1630 in substitution of Senate Bill No. 1129 but after expressly taking into consideration
House Bill No. 11197.

Since the Senate is, under the above-quoted constitutional provision, empowered to concur with
a revenue measure exclusively originating from the House, or to propose amendments thereto,
to the extent of proposing amendments by SUBSTITUTION to the House measure, the approval
by the Senate of Senate Bill No. 1630, after it had considered House Bill No. 11197, may be
taken, in my view, as an AMENDMENT BY SUBSTITUTION by the Senate not only of Senate
Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered, originated
exclusively from the House.

But then, in recognition of the fact that House Bill No. 11197 which originated exclusively from
the House and Senate Bill No. 1630 contained conflicting provisions, both bills (House Bill No.
11197 and Senate Bill No. 1630) were referred to the Bicameral Conference Committee for joint
consideration with a view to reconciling their conflicting provisions.

The Conference Committee came out eventually with a Conference Committee Bill which was
submitted to both chambers of Congress (the Senate and the House). The Conference
Committee reported out a bill consolidating provisions in House Bill No. 11197 and Senate Bill
No. 1630. What transpired in both chambers after the Conference Committee Report was
submitted to them is not clear from the records in this case. What is clear however is that both
chambers voted separately on the bill reported out by the Conference Committee and both
chambers approved the bill of the Conference Committee.

To me then, what should really be important is that both chambers of Congress approved the
bill reported out by the Conference Committee. In my considered view, the act of both chambers
of Congress in approving the Conference Committee bill, should put an end to any inquiry by
this Court as to how the bill came about. What is more, such separate approvals CURED
whatever constitutional infirmities may have arisen in the procedures leading to such approvals.
For, if such infirmities were serious enough to impugn the very validity of the measure itself,
there would have been an objection or objections from members of both chambers to the
approval. The Court has been shown no such objection on record in both chambers.

Petitioners contend that there were violations of Sec. 26 paragraph 2, Article VI of the
Constitution which provides:

Sec. 26. . . .

(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
 calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.

in that, when Senate Bill No. 1630 (the Senate counterpart of House Bill No. 11197) was
approved by the Senate, after it had been reported out by the Senate Committee on Ways and
Means, the bill went through second and third readings on the same day (not separate days)
and printed copies thereof in its final form were not distributed to the members of the Senate at
least three (3) days before its passage by the Senate. But we are told by the respondents that
the reason for this "short cut" was that the President had certified to the necessity of the bill's
immediate enactment to meet an emergency — a certification that, by leave of the same
constitutional provision, dispensed with the second and third readings on separate days and the
printed form at least three (3) days before its passage.

We have here then a situation where the President did certify to the necessity of Senate Bill No.
1630's immediate enactment to meet an emergency and the Senate responded accordingly.
While I would be the last to say that this Court cannot review the exercise of such power by the
President in appropriate cases ripe for judicial review, I am not prepared however to say that the
President gravely abused his discretion in the exercise of such power as to require that this
Court overturn his action. We have been shown no fact or circumstance which would impugn
the judgment of the President, concurred in by the Senate, that there was an emergency that
required the immediate enactment of Senate Bill No. 1630. On the other hand, a becoming
respect for a co-equal and coordinate department of government points that weight and
credibility be given to such Presidential judgment.

The authority or power of the Conference Committee to make insertions in and deletions from
the bills referred to it, namely, House Bill No. 11197 and Senate Bill No. 1630 is likewise
assailed by petitioners. Again, what appears important here is that both chambers approved and
ratified the bill as reported out by the Conference Committee (with the reported insertions and
deletions). This is perhaps attributable to the known legislative practice of allowing a
Conference Committee to make insertions in and deletions from bills referred to it for
consideration, as long as they are germane to the subject matter of the bills under
consideration. Besides, when the Conference Committee made the insertions and deletions
complained of by petitioners, was it not actually performing the task assigned to it of reconciling
conflicting provisions in House Bill No. 11197 and Senate Bill No. 1630?

This Court impliedly if not expressly recognized the fact of such legislative practice in Philippine
Judges Association, etc. vs. Hon. Peter Prado, etc., 5 In said case, we stated thus:

The petitioners also invoke Sec. 74 of the Rules of the House of

Representatives, requiring that amendment to any bill when the House and the
Senate shall have differences thereon may be settled by a conference committee
of both chambers. They stress that Sec. 35 was never a subject of any
disagreement between both Houses and so the second paragraph could not
have been validly added as an amendment.

These arguments are unacceptable.

 While it is true that a conference committee is the mechanism for compromising
differences between the Senate and the House, it is not limited in its jurisdiction
to this question. Its broader function is described thus:

A conference committee may deal generally with the subject

matter or it may be limited to resolving the precise differences
between the two houses. Even where the conference committee is
not by rule limited in its jurisdiction, legislative custom severely
limits the freedom with which new subject matter can be inserted
into the conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate. These
excursions occurs even where the rules impose strict limitations
on conference committee jurisdiction. This is symptomatic of the
authoritarian power of conference committee (Davies, Legislative
Law and Process: In A Nutshell, 1986 Ed., p. 81).

It is a matter of record that the Conference Committee Report on the bill in

question was returned to and duly approved by both the Senate and the House
of Representatives. Thereafter, the bill was enrolled with its certification by
Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House
of Representatives as having been duly passed by both Houses of Congress. It
was then presented to and approved by President Corazon C. Aquino on April 3,
1992.

It would seem that if corrective measures are in order to clip the powers of the Conference
Committee, the remedy should come from either or both chambers of Congress, not from this
Court, under the time-honored doctrine of separation of powers.

Finally, as certified by the Secretary of the Senate and the Secretary General of the House of
Representatives —

This Act (Rep. Act No. 7716) is a consolidation of House Bill No. 11197 and
Senate Bill No. 1630 (w)as finally passed by the House of Representatives and
the Senate on April 27, 1994 and May 2, 1994 respectively.

Under the long-accepted doctrine of the "enrolled bill," the Court in deference to a co-equal and
coordinate branch of government is held to a recognition of Rep. Act No. 7716 as a law validly
enacted by Congress and, thereafter, approved by the President on 5 May 1994. Again, we
quote from out recent decision in Philippine Judges Association, supra:

Under the doctrine of separation of powers, the Court may not inquire beyond the
certification of the approval of a bill from the presiding officers of
Congress. Casco Philippine Chemical Co. v. Gimenez laid down the rule that the
enrolled bill is conclusive upon the Judiciary (except in matters that have to be
entered in the journals like the yeas and nays on the finally reading of the bill).
The journals are themselves also binding on the Supreme Court, as we held in
the old (but still valid) case of U.S. vs. Pons,8 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 to violate both the letter and spirit of the organic laws by
which the Philippine Government was brought into existence, to
invade a coordinate and independent department of the
Government, and to interfere with the legitimate 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 that eventually
became R.A. No. 7354 and that copies thereof in its final form were not
distributed among the members of each House. Both the enrolled bill and the
legislative journals certify that the measure was duly enacted i.e., in accordance
with Article VI, Sec. 26(2) of the Constitution. We are bound by such official
assurances from a coordinate department of the government, to which we owe,
at the very least, a becoming courtesy.

III

Press Freedom and Religious Freedom and Rep. Act No. 7716

The validity of the passage of Rep. Act No. 7716 notwithstanding, certain provisions of the law
have to be examined separately and carefully.

Rep. Act. No. 7716 in imposing a value-added tax on circulation income of newspapers and
similar publications and on income derived from publishing advertisements in newspapers 9, to
my mind, violates Sec. 4, Art. III of the Constitution. Indeed, even the Executive Department has
tried to cure this defect by the issuance of the BIR Regulation No. 11-94 precluding
implementation of the tax in this area. It should be clear, however, that the BIR regulation
cannot amend the law (Rep. Act No. 7716). Only legislation (as distinguished from
administration regulation) can amend an existing law.

Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime
cause of the revolution against Spain at the turn of the 19th century was the repression of the
freedom of speech and expression and of the press. No less than our national hero, Dr. Jose P.
Rizal, in "Filipinas Despues de Cien Anos" (The Philippines a Century Hence) describing the
reforms sine quibus non which the Filipinos were insisting upon, stated: "The minister . . . who
wants his reforms to be reforms, must begin by declaring the press in the Philippines free . . .
". 10

Press freedom in the Philippines has met repressions, most notable of which was the closure of
almost all forms of existing mass media upon the imposition of martial law on 21 September
1972.

Section 4, Art. III of the Constitution maybe traced to the United States Federal Constitution.
The guarantee of freedom of expression was planted in the Philippines by President McKinley in
the Magna Carta of Philippine Liberty, Instructions to the Second Philippine Commission on 7
April 1900.

The present constitutional provision which reads:

 Sec. 4 No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.

is essentially the same as that guaranteed in the U.S. Federal Constitution, for which reason,
American case law giving judicial expression as to its meaning is highly persuasive in the
Philippines.

The plain words of the provision reveal the clear intention that no prior restraint can be imposed
on the exercise of free speech and expression if they are to remain effective and meaningful.

The U.S. Supreme Court in the leading case of Grosjean v. American Press Co. Inc.11 declared
a statute imposing a gross receipts license tax of 2% on circulation and advertising income of
newspaper publishers as constituting a prior restraint which is contrary to the guarantee of
freedom of the press.

In Bantam Books, Inc. v. Sullivan 12, the U.S. Supreme Court stated: "Any system of prior
restraint of expression comes to this Court bearing a heavy presumption against its
constitutionality."

In this jurisdiction, prior restraint on the exercise of free expression can be justified only on the
ground that there is a clear and present danger of a substantive evil which the State has the
right to prevent 13.

In the present case, the tax imposed on circulation and advertising income of newspaper
publishers is in the nature of a prior restraint on circulation and free expression and, absent a
clear showing that the requisite for prior restraint is present, the constitutional flaw in the law is
at once apparent and should not be allowed to proliferate.

Similarly, the imposition of the VAT on the sale and distribution of religious articles must be
struck down for being contrary to Sec. 5, Art. III of the Constitution which provides:

Sec. 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.

That such a tax on the sale and distribution of religious articles is unconstitutional, has been
long settled in American Bible Society, supra.

Insofar, therefore, as Rep. Act No. 7716 imposes a value-added tax on the exercise of the
above- discussed two (2) basic constitutional rights, Rep. Act No. 7716 should be declared
unconstitutional and of no legal force and effect.

IV

Petitions of CREBA and PAL and Rep. Act No. 7716

The Chamber of Real Estate and Builder's Association, Inc. (CREBA) filed its own petition (GR
No. 11574) arguing that the provisions of Rep. Act No. 7716 imposing a 10% value-added tax
on the gross selling price or gross value in money of every sale, barter or exchange of goods or
properties (Section 2) and a 10% value-added tax on gross receipts derived from the sale or
exchange of services, including the use or lease of properties (Section 3), violate the equal
protection, due process and non-impairment provisions of the Constitution as well as the rule
that taxation should be uniform, equitable and progressive.

The issue of whether or not the value-added tax is uniform, equitable and progressive has been
settled in Kapatiran.

CREBA which specifically assails the 10% value-added tax on the gross selling price of real
properties, fails to distinguish between a sale of real properties primarily held for sale to
customers or held for lease in the ordinary course of trade or business and isolated sales by
individual real property owners (Sec. 103[s]). That those engaged in the business of real estate
development realize great profits is of common knowledge and need not be discussed at length
here. The qualification in the law that the 10% VAT covers only sales of real property primarily
held for sale to customers, i.e. for trade or business thus takes into consideration a taxpayer's
capacity to pay. There is no showing that the consequent distinction in real estate sales is
arbitrary and in violation of the equal protection clause of the Constitution. The inherent power
to tax of the State, which is vested in the legislature, includes the power to determine whom or
what to tax, as well as how much to tax. In the absence of a clear showing that the tax violates
the due process and equal protection clauses of the Constitution, this Court, in keeping with the
doctrine of separation of powers, has to defer to the discretion and judgment of Congress on
this point.

Philippine Airlines (PAL) in a separate petition (G.R. No. 115852) claims that its franchise under
PD No. 1590 which makes it liable for a franchise tax of only 2% of gross revenues "in lieu of all
the other fees and charges of any kind, nature or description, imposed, levied, established,
assessed or collected by any municipal, city, provincial, or national authority or government
agency, now or in the future," cannot be amended by Rep. Act No. 7716 as to make it (PAL)
liable for a 10% value-added tax on revenues, because Sec. 24 of PD No. 1590 provides that
PAL's franchise can only be amended, modified or repealed by a special law specifically for that
purpose.

The validity of PAL's above argument can be tested by ascertaining the true intention of
Congress in enacting Rep. Act No. 7716. Sec. 4 thereof dealing with Exempt Transactions
states:

Sec. 103. Exempt Transactions. — The following shall be exempt from the value-
added tax:

xxx xxx xxx

(q) Transactions which are exempt under special laws, except those granted
under Presidential Decrees No. 66, 529, 972, 1491,
1590, . . . " (Emphasis supplied)

The repealing clause of Rep. Act No. 7716 further reads:

 Sec. 20. Repealing clauses. — The provisions of any special law relative to the
rate of franchise taxes are hereby expressly repealed.

xxx xxx xxx

All other laws, orders, issuances, rules and regulations or parts thereof
inconsistent with this Act are hereby repealed, amended or modified accordingly
(Emphasis supplied)

There can be no dispute, in my mind, that the clear intent of Congress was to modify PAL's
franchise with respect to the taxes it has to pay. To this extent, Rep. Act No. 7716 can be
considered as a special law amending PAL's franchise and its tax liability thereunder. That Rep.
Act. No. 7716 imposes the value-added taxes on other subjects does not make it a general law
which cannot amend PD No. 1590.

To sum up: it is my considered view that Rep. Act No. 7716 (the expanded value-added tax) is a
valid law, viewed from both substantive and procedural standards, except only insofar as it
violates Secs. 4 and 5, Art. III of the Constitution (the guarantees of freedom of expression and
the free exercise of religion). To that extent, it is, in its present form, unconstitutional.

I, therefore, vote to DISMISS the petitions, subject to the above qualification.

VITUG, J.:

Lest we be lost by a quagmire of trifles, the real threshold and prejudicial issue, to my mind, is
whether or not this Court is ready to assume and to take upon itself with an overriding authority
the awesome responsibility of overseeing the entire bureaucracy. Far from it, ours is merely to
construe and to apply the law regardless of its wisdom and salutariness, and to strike it down
only when it clearly disregards constitutional proscriptions. It is what the fundamental law
mandates, and it is what the Court must do.

I cannot yet concede to the novel theory, so challengingly provocative as it might be, that under
the 1987 Constitution the Court may now at good liberty intrude, in the guise of the people's
imprimatur, into every affair of the government. What significance can still then remain, I ask, of
the time honored and widely acclaimed principle of separation of powers, if at every turn the
Court allows itself to pass upon, at will, the disposition of a co-equal, independent and
coordinate branch in our system of government. I dread to think of the so varied uncertainties
that such an undue interference can lead to. The respect for long standing doctrines in our
jurisprudence, nourished through time, is one of maturity not timidity, of stability rather than
quiescence.

It has never occurred to me, and neither do I believe it has been intended, that judicial tyranny is
envisioned, let alone institutionalized, by our people in the 1987 Constitution. The test of tyranny
is not solely on how it is wielded but on how, in the first place, it can be capable of being
exercised. It is time that any such perception of judicial omnipotence is corrected.

Against all that has been said, I see, in actuality in these cases at bench, neither a constitutional
infringement of substance, judging from precedents already laid down by this Court in previous
cases, nor a justiciability even now of the issues raised, more than an attempt to sadly highlight
the perceived shortcomings in the procedural enactment of laws, a matter which is internal to
Congress and an area that is best left to its own basic concern. The fact of the matter is that the
legislative enactment, in its final form, has received the ultimate approval of both houses of
Congress. The finest rhetoric, indeed fashionable in the early part of this closing century, would
still be a poor substitute for tangibility. I join, nonetheless, some of my colleagues in respectfully
inviting the kind attention of the honorable members of our Congress in the suggested
circumspect observance of their own rules.

A final remark. I should like to make it clear that this opinion does not necessarily foreclose the
right, peculiar to any taxpayer adversely affected, to pursue at the proper time, in appropriate
proceedings, and in proper fora, the specific remedies prescribed therefor by the National
Internal Revenue Code, Republic Act 1125, and other laws, as well as rules of procedure, such
as may be pertinent. Some petitions filed with this Court are, in essence, although styled
differently, in the nature of declaratory relief over which this Court is bereft of original
jurisdiction.

All considered, I, therefore, join my colleagues who are voting for the dismissal of the petitions.

CRUZ, J.:

It is a curious and almost incredible fact that at the hearing of these cases on July 7, 1994, the
lawyers who argued for the petitioners — two of them former presidents of the Senate and the
third also a member of that body — all asked this Court to look into the internal operations of
their Chamber and correct the irregularities they claimed had been committed there as well as in
the House of Representatives and in the bicameral conference committee.

While a member of the legislative would normally resist such intervention and invoke the
doctrine of separation of powers to protect Congress from what he would call judicial intrusion,
these counsel practically implored the Court to examine the questioned proceedings and to this
end go beyond the journals of each House, scrutinize the minutes of the committee, and
investigate all other matters relating to the passage of the bill (or bills) that eventually became
R.A. No. 7716.

In effect, the petitioners would have us disregard the time-honored inhibitions laid down by the
Court upon itself in the landmark case of U.S. v. Pons (34 Phil. 725), where it refused to
consider extraneous evidence to disprove the recitals in the journals of the Philippine
Legislature that it had adjourned sine die at midnight of February 28, 1914. Although it was
generally known then that the special session had actually exceeded the deadline fixed by the
Governor-General in his proclamation, the Court chose to be guided solely by the legislative
journals, holding significantly as follows:

. . . From their very nature and object, the records of the legislature are as
important as those of the judiciary, and to inquire into the veracity of the journals
of the Philippine Legislature, when they are, as we have said, clear and explicit,
would be to violate both the letter and the spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate
 powers and functions of the Legislature. But counsel in his argument says that
the public knows that the Assembly's clock was stopped on February 28, 1914, at
midnight and left so until the determination of the discussion of all pending
matters. Or, in other words, the hands of the clock were stayed in order to enable
the Assembly to effect an adjournment apparently within the fixed time by the
Governor's proclamation for the expiration of the special session, in direct
violation of the Act of Congress of July 1, 1902. If the clock was, in fact, stopped,
as here suggested, "the resultant evil might be slight as compared with that of
altering the probative force and character of legislative records, and making the
proof of legislative action depend upon uncertain oral evidence, liable to loss by
death or absence, and so imperfect on account of the treachery of memory.

. . . The journals say that the Legislature adjourned at 12 midnight on February

28, 1914. This settles the question, and the court did not err in declining to go
beyond the journals.

As one who has always respected the rationale of the separation of powers, I realize only too
well the serious implications of the relaxation of the doctrine except only for the weightiest of
reasons. The lowering of the barriers now dividing the three major branches of the government
could lead to individious incursions by one department into the exclusive domains of the other
departments to the detriment of the proper discharge of the functions assigned to each of them
by the Constitution.

Still, while acknowledging the value of tradition and the reasons for judicial non-interference
announced in Pons, I am not disinclined to take a second look at the ruling from a more
pragmatic viewpoint and to tear down, if we must, the iron curtain it has hung, perhaps
improvidently, around the proceedings of the legislature.

I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it
should not suffice for Congress to simply say that the rules have been observed and flatly
consider the matter closed. It does not have to be as final as that. I would imagine that the
judiciary, and particularly this Court, should be able to verify that statement and determine for
itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed.

In fact, the Court had already said that the question of whether certain procedural rules have
been followed is justiciable rather than political because what is involved is the legality and not
the wisdom of the act in question. So we ruled in Sanidad v. Commission on Elections (73
SCRA 333) on the amendment of the Constitution; in Daza v. Singson (180 SCRA 496) on the
composition of the Commission on Appointments; and in the earlier case of Tañada v.
Cuenco (100 SCRA 1101) on the organization of the Senate Electoral Tribunal, among several
other cases.

By the same token, the ascertainment of whether a bill underwent the obligatory three readings
in both Houses of Congress should not be considered an invasion of the territory of the
legislature as this would not involve an inquiry into its discretion in approving the measure but
only the manner in which the measure was enacted.

These views may upset the conservatives among us who are most comfortable when they allow
themselves to be petrified by precedents instead of venturing into uncharted waters. To be sure,
there is much to be said of the wisdom of the past expressed by vanished judges talking to the
future. Via trita est tuttisima. Except when there is a need to revise them because of an altered
situation or an emergent idea, precedents should tell us that, indeed, the trodden path is the
safest path.

It could be that the altered situation has arrived to welcome the emergent idea. The jurisdiction
of this Court has been expanded by the Constitution, to possibly include the review the
petitioners would have us make of the congressional proceedings being questioned. Perhaps it
is also time to declare that the activities of Congress can no longer be smoke-screened in the
inviolate recitals of its journals to prevent examination of its sacrosanct records in the name of
the separation of powers.

But then again, perhaps all this is not yet necessary at this time and all these observations are
but wishful musings for a more activist judiciary. For I find that this is not even necessary, at
least for me, to leave the trodden path in the search for new adventures in the byways of the
law. The answer we seek, as I see it, is not far afield. It seems to me that it can be found
through a study of the enrolled bill alone and that we do not have to go beyond that measure to
ascertain if R.A. No. 7716 has been validly enacted.

It is settled in this jurisdiction that in case of conflict between the enrolled bill and the legislative
journals, it is the former that should prevail except only as to matters that the Constitution
requires to be entered in the journals. (Mabanag v. Lopez Vito, 78 Phil. 1). These are
the yeas and nays on the final reading of a bill or on any question at the request of at least one-
fifth of the member of the House (Constitution, Art. VI, Sec. 16[4]), the objections of the
President to a vetoed bill or item (Ibid, Sec. 27 [1]), and the names of the members voting for or
against the overriding of his veto (Id. Section 27 [1]), The original of a bill is not specifically
required by the Constitution to be entered in the journals. Hence, on this particular manner, it is
the recitals in the enrolled bill and not in the journals that must control.

Article VI, Section 24, of the Constitution provides:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.

The enrolled bill submitted to and later approved by the President of the Philippines as R.A. No.
7716 was signed by the President of the Senate and the Speaker of the House of
Representatives. It carried the following certification over the signatures of the Secretary of the
Senate and the Acting Secretary of the House of Representatives:

This Act which is a consolidation of House Bill No. 11197 and Senate Bill No.
11630 was finally passed by the House of Representative and the Senate on
April 27, 1994, and May 2, 1994.

Let us turn to Webster for the meaning of certain words,

To "originate" is "to bring into being; to create something (original); to invent; to begin; start."
The word "exclusively" means "excluding all others" and is derived from the word "exclusive,"
meaning "not shared or divided; sole; single." Applying these meanings, I would read Section 24
as saying that the bills mentioned therein must be brought into being, or created, or invented, or
begun or started, only or singly or by no other body than the house of Representatives.

According to the certification, R.A. No. 7716 "is a consolidation of House Bill No. 11197 and
Senate Bill No. 1630." Again giving the words used their natural and ordinary sense
conformably to an accepted canon of construction, I would read the word "consolidation" as a
"combination or merger" and derived from the word "consolidated," meaning "to combine into
one; merge; unite."

The two bills were separately introduced in their respective Chambers. Both retained their
independent existence until they reached the bicameral conference committee where they were
consolidated. It was this consolidated measure that was finally passed by Congress and
submitted to the President of the Philippines for his approval.

House Bill No. 11197 originated in the House of Representatives but this was not the bill that
eventually became R.A. No. 7716. The measure that was signed into law by President Ramos
was the consolidation of that bill and another bill, viz., Senate Bill No. 1630, which was
introduced in the Senate. The resultant enrolled bill thus did not originate exclusively in the
House of Representatives. The enrolled bill itself says that part of it (and it does not matter to
what extent) originated in the Senate.

It would have been different if the only participation of the Senate was in the amendment of the
measure that was originally proposed in the House of Representatives. But this was not the
case. The participation of the Senate was not in proposing or concurring with amendments that
would have been incorporated in House Bill No. 11197. Its participation was in originating its
own Senate Bill No. 1630, which was not embodied in but merged with House Bill No. 11197.

Senate Bill No. 1630 was not even an amendment by substitution, assuming this was
permissible. To "substitute" means "to take the place of; to put or use in place of another."
Senate Bill No. 1630 did not, upon its approval replace (and thus eliminate) House Bill No.
11197. Both bills retained their separate identities until they were joined or united into what
became the enrolled bill and ultimately R.A. No. 7716.

The certification in the enrolled bill says it all. It is clear that R.A. No. 7716 did not originate
exclusively in the House of Representatives.

To go back to my earlier observations, this conclusion does not require the reversal of U.S. vs.
Pons and an inquiry by this Court into the proceedings of the legislature beyond the recitals of
its journals. All we need to do is consider the certification in the enrolled bill and, without
entering the precincts of Congress, declare that by this own admission it has, indeed, not
complied with the Constitution.

While this Court respects the prerogatives of the other departments, it will not hesitate to rise to
its higher duty to require from them, if they go astray, full and strict compliance with the
fundamental law. Our fidelity to it must be total. There is no loftier principle in our democracy
than the supremacy of the Constitution, to which all must submit.

I vote to invalidate R.A. No. 7716 for violation of Article VI, Sec. 24, of the Constitution.

 
REGALADO, J.:

It would seem like an inconceivable irony that Republic Act No. 7716 which, so respondents
claim, was conceived by the collective wisdom of a bicameral Congress and crafted with
sedulous care by two branches of government should now be embroiled in challenges to its
validity for having been enacted in disregard of mandatory prescriptions of the Constitution
itself. Indeed, such impugnment by petitioners goes beyond merely the procedural flaws in the
parturition of the law. Creating and regulating as it does definite rights to property, but with its
own passage having been violative of explicit provisions of the organic law, even without going
into the intrinsic merits of the provisions of Republic Act No. 7716 its substantive invalidity is pro
facto necessarily entailed.

How it was legislated into its present statutory existence is not in serious dispute and need not
detain us except for a recital of some salient and relevant facts. The House of Representatives
passed House Bill No. 11197 1 on third reading on November 17, 1993 and, the following day, It
transmitted the same to the Senate for concurrence. On its part, the Senate approved Senate
Bill No. 1630 on second and third readings on March 24, 1994. It is important to note in this
regard that on March 22, 1994, said S.B. No. 1630 had been certified by President Fidel V.
Ramos for immediate enactment to meet a public emergency, that is, a growing budgetary
deficit. There was no such certification for H.B. No. 11197 although it was the initiating revenue
bill.

It is, therefore, not only a curious fact but, more importantly, an invalid procedure since that
Presidential certification was erroneously made for and confined to S.B. No. 1630 which was
indisputably a tax bill and, under the Constitution, could not validly originate in the Senate.
Whatever is claimed in favor of S.B. No. 1630 under the blessings of that certification, such as
its alleged exemption from the three separate readings requirement, is accordingly negated and
rendered inutile by the inefficacious nature of said certification as it could lawfully have been
issued only for a revenue measure originating exclusively from the lower House. To hold
otherwise would be to validate a Presidential certification of a bill initiated in the Senate despite
the Constitutional prohibition against its originating therefrom.

Equally of serious significance is the fact that S.B. No. 1630 was reported out in Committee
Report No. 349 submitted to the Senate on February 7, 1994 and approved by that body "in
substitution of S.B. No. 1129," while merely "taking into consideration P.S. No. 734 and H.B. No.
11197." 2 S.B. No. 1630, therefore, was never filed in substitution of either P.S. No. 734 or, more
emphatically, of H.B. No. 11197 as these two legislative issuances were merely taken account
of, at the most, as referential bases or materials.

This is not a play on misdirection for, in the first instance, the respondents assure us that H.B.
No. 11197 was actually the sole source of and started the whole legislative process which
culminated in Republic Act No. 7716. The participation of the Senate in enacting S.B. No. 1630
was, it is claimed, justified as it was merely in pursuance of its power to concur in or propose
amendments to H.B. No. 11197. Citing the 83-year old case of Flint vs. Stone Tracy Co., 3 it is
blithely announced that such power to amend includes an amendment by substitution, that is,
even the extent of substituting the entire H.B. No. 11197 by an altogether completely new
measure of Senate provenance. Ergo, so the justification goes, the Senate acted perfectly in
accordance with its amending power under Section 24, Article VI of the Constitution since it
merely proposed amendments through a bill allegedly prepared in advance.
This is a mode of argumentation which, by reason of factual inaccuracy and logical
implausibility, both astounds and confounds. For, it is of official record that S.B. No. 1630 was
filed, certified and enacted in substitution of S.B. No. 1129 which in itself was likewise in
derogation of the Constitutional prohibition against such initiation of a tax bill in the Senate. In
any event, S.B. No. 1630 was neither intended as a bill to be adopted by the Senate nor to be
referred to the bicameral conference committee as a substitute for H.B. No. 11197. These
indelible facts appearing in official documents cannot be erased by any amount of strained
convolutions or incredible pretensions that S.B. No. 1630 was supposedly enacted in
anticipation of H.B. No. 11197.

On that score alone, the invocation by the Solicitor General of the hoary concept of amendment
by substitution falls flat on its face. Worse, his concomitant citation of Flint to recover from that
prone position only succeeded in turning the same postulation over, this time supinely flat on its
back. As elsewhere noted by some colleagues, which I will just refer to briefly to avoid
duplication, respondents initially sought sanctuary in that doctrine supposedly laid down in Flint,
thus: "It has, in fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment." 4 (Emphasis supplied.) During the
interpellation by the writer at the oral argument held in these cases, the attention of the Solicitor
General was called to the fact that the amendment in Flint consisted only of a single item, that
its, the substitution of a corporate tax for an inheritance tax proposed in a general revenue bill;
and that the text of the decision therein nowhere contained the supposed doctrines he quoted
and ascribed to the court, as those were merely summations of arguments of counsel therein. It
is indeed a source of disappointment for us, but an admission of desperation on his part, that,
instead of making a clarification or a defense of his contention, the Solicitor General merely
reproduced all over again 5 the same quotations as they appeared in his original consolidated
comment, without venturing any explanation or justification.

The aforestated dissemblance, thus unmasked, has further undesirable implications on the
contentions advanced by respondents in their defense. For, even indulging respondents ex
gratia argumenti in their pretension that S.B. No. 1630 substituted or replaced H.B. No. 11197,
aside from muddling the issue of the true origination of the disputed law, this would further
enmesh respondents in a hopeless contradiction.

In a publication authorized by the Senate and from which the Solicitor General has liberally
quoted, it is reported as an accepted rule therein that "(a)n amendment by substitution when
approved takes the place of the principal bill. C.R. March 19, 1963, p. 943." 6 Stated elsewise,
the principal bill is supplanted and goes out of actuality. Applied to the present situation, and
following respondents' submission that H.B. No. 11197 had been substituted or replaced in its
entirety, then in law it had no further existence for purposes of the subsequent stages of
legislation except, possibly, for referential data.

Now, the enrolled bill thereafter submitted to the President of the Philippines, signed by the
President of the Senate and the Speaker of the House of Representatives, carried this solemn
certification over the signatures of the respective secretaries of both chambers: "This Act which
is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was finally passed by the
House of Representatives and the Senate on April 27, 1994, and May 2, 1994." (Emphasis
mine.) In reliance thereon, the Chief Executive signed the same into law as Republic Act No.
7716.
The confusion to which the writer has already confessed is now compounded by that official text
of the aforequoted certification which speaks, and this cannot be a mere lapsus calami, of
two independent and existing bills (one of them being H.B. No. 11197) which were consolidated
to produce the enrolled bill. In parliamentary usage, to consolidate two bills, is to unite them into
one 7 and which, in the case at bar, necessarily assumes that H.B. No. 11197 never became
legally inexistent. But did not the Solicitor General, under the theory of amendment by
substitution of the entire H.B. No. 11197 by S.B. No. 1630, thereby premise the same upon the
replacement, hence the total elimination from the legislative process, of H.B. 11197?

It results, therefore, that to prove compliance with the requirement for the exclusive origination
of H.B. No. 11197, two alternative but inconsistent theories had to be espoused and defended
by respondents' counsel. To justify the introduction and passage of S.B. No. 1630 in the Senate,
it was supposedly enacted only as an amendment by substitution, hence on that theory H.B. No.
11197 had to be considered as displaced and terminated from its role or existence. Yet, likewise
for the same purpose but this time on the theory of origination by consolidation, H.B. No. 11197
had to be resuscitated so it could be united or merged with S.B. No. 1630. This latter alternative
theory, unfortunately, also exacerbates the constitutional defect for then it is an admission of
a dual origination of the two tax bills, each respectively initiated in and coming from the lower
and upper chambers of Congress.

Parenthetically, it was also this writer who pointedly brought this baffling situation to the
attention of the Solicitor General during the aforesaid oral argument, to the extent of reading
aloud the certification in full. We had hoped thereby to be clarified on these vital issue in
respondents' projected memorandum, but we have not been favored with an explanation
unraveling this delimma. Verily, by passing sub silentio on these intriguing submissions,
respondents have wreaked havoc on both logic and law just to gloss over their non-compliance
with the Constitutional mandate for exclusive origination of a revenue bill. The procedure
required therefor, we emphatically add, can be satisfied only by complete and strict compliance
since this is laid down by the Constitution itself and not by a mere statute.

This writer consequently agrees with the clearly tenable proposition of petitioners that when the
Senate passed and approved S.B. No. 1630, had it certified by the Chief Executive, and
thereafter caused its consideration by the bicameral conference committee in total substitution
of H.B. No. 11197, it clearly and deliberately violated the requirements of the Constitution not
only in the origination of the bill but in the very enactment of Republic Act No. 7716. Contrarily,
the shifting sands of inconsistency in the arguments adduced for respondents betray such lack
of intellectual rectitude as to give the impression of being mere rhetorics in defense of the
indefensible.

We are told, however, that by our discoursing on the foregoing issues we are introducing into
non-justiciable areas long declared verboten by such time-honored doctrines as those on
political questions, the enrolled bill theory and the respect due to two co-equal and coordinate
branches of Government, all derived from the separation of powers inherent in republicanism.
We appreciate the lectures, but we are not exactly unaware of the teachings in U.S. vs.
Pons, 8 Mabanag, vs. Lopez Vito, 9 Casco Philippine Chemical Co., Inc. vs. Gimenez, etc., et
al., 10 Morals vs. Subido, etc., 11 and Philippine Judges Association, etc., et al. vs. Prado, etc., et
al., 12 on the one hand, and Tañada, et al. vs. Cuenco, et al., 13 Sanidad, et al., vs. Commission
on Elections, et al., 14 and Daza vs. Singson, et al., 15 on the other, to know which would be
applicable to the present controversy and which should be rejected.
But, first, a positional exordium. The writer of this opinion would be among the first to
acknowledge and enjoin not only courtesy to, but respect for, the official acts of the Executive
and Legislative departments, but only so long as the same are in accordance with or are
defensible under the fundamental charter and the statutory law. He would readily be numbered
in the ranks of those who would preach a reasoned sermon on the separation of powers, but
with the qualification that the same are not contained in tripartite compartments separated by
empermeable membranes. He also ascribes to the general validity of American constitutional
doctrines as a matter of historical and legal necessity, but not to the extent of being oblivious to
political changes or unmindful of the fallacy of undue generalization arising from myopic
disregard of the factual setting of each particular case.

These ruminations have likewise been articulated and dissected by my colleagues, hence it is
felt that the only issue which must be set aright in this dissenting opinion is the so-called
enrolled bill doctrine to which we are urged to cling with reptilian tenacity. It will be preliminarily
noted that the official certification appearing right on the face of Republic Act No. 7716 would
even render unnecessary any further judicial inquiry into the proceedings which transpired in the
two legislative chambers and, on a parody of tricameralism, in the bicameral conference
committee. Moreover, we have the excellent dissertations of some of my colleagues on these
matters, but respondents insist en contra that the congressional proceedings cannot properly be
inquired into by this Court. Such objection confirms a suppressive pattern aimed at sacrificing
the rule of law to the fiat of expediency.

Respondents thus emplaced on their battlements the pronouncement of this Court in the
aforecited case of Philippine Judges Association vs. Prado. 16 Their reliance thereon falls into
the same error committed by their seeking refuge in the Flint case, ante. which, as has earlier
been demonstrated (aside from the quotational misrepresentation), could not be on par with the
factual situation in the present case. Flint, to repeat, involved a mere amendment on a single
legislative item, that is, substituting the proposal therein of an inheritance tax by one on
corporate tax. Now, in their submission based on Philippine Judges Association, respondents
studiously avoid mention of the fact that the questioned insertion referred likewise to a single
item, that is, the repeal of the franking privilege thretofore granted to the judiciary. That both
cases cannot be equated with those at bar, considering the multitude of items challenged and
the plethora of constitutional violations involved, is too obvious to belabor. Legal advocacy and
judicial adjudication must have a becoming sense of qualitative proportion, instead of lapsing
into the discredited and maligned practice of yielding blind adherence to precedents.

The writer unqualifiedly affirms his respect for valid official acts of the two branches of
government and eschews any unnecessary intrusion into their operational management and
internal affairs. These, without doubt, are matters traditionally protected by the republican
principle of separation of powers. Where, however, there is an overriding necessity for judicial
intervention in light of the pervasive magnitude of the problems presented and the gravity of the
constitutional violations alleged, but this Court cannot perform its constitutional duty expressed
in Section 1, Article VIII of the Constitution unless it makes the inescapable inquiry, then the
confluence of such factors should compel an exception to the rule as an ultimate recourse. The
cases now before us present both the inevitable challenge and the inescapable exigency for
judicial review. For the Court to now shirk its bounden duty would not only project it as a citadel
of the timorous and the slothful, but could even undermine its raison d'etre as the highest and
ultimate tribunal.
Hence, this dissenting opinion has touched on events behind and which transpired prior to the
presentation of the enrolled bill for approval into law. The details of that law which resulted from
the legislative action followed by both houses of Congress, the substantive validity of whose
provisions and the procedural validity of which legislative process are here challenged as
unconstitutional, have been graphically presented by petitioners and admirably explained in the
respective opinions of my brethren. The writer concurs in the conclusions drawn therefrom and
rejects the contention that we have unjustifiably breached the dike of the enrolled bill doctrine.

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 contents and 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 are required to furnish
the evidence." 17

In fact, in Gwynn vs. Hardee, etc., et al., 18 the Supreme Court of Florida declared:

(1) While the presumption is that the enrolled bill, as signed by the legislative
officers and filed with the secretary of state, is the bill as it passed, 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 said by 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

journals speak they control, and against such proof the enrolled
bill is not conclusive.

More enlightening and apropos to the present controversy is the decision promulgated on May
13, 1980 by the Supreme Court of Kentucky in D & W Auto Supply, et al. vs. Department of
Revenue, et al., 19 pertinent exceprts 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 the so-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 the appropriate officers, to
determine if there are any defects.

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 declining to look behind
the law to determine the propriety of its enactment, the court enunciated three
reasons for adopting the enrolled bill rule. First, the court was reluctant to
scrutinize the processes of the legislature, an equal branch of government.
Second, reasons of convenience prevailed, which discouraged requiring the
legislature to preserve its records and anticipated considerable complex litigation
if the court ruled otherwise. Third, the court acknowledged the poor record-
keeping abilities of the General Assembly and expressed a preference for
accepting the final bill as enrolled, rather than opening up the records of the
legislature. . . . .

xxx xxx xxx

Nowhere has the rule been adopted without reason, or as a result of judicial
whim. There are four historical bases for the doctrine. (1) An enrolled bill 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 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, 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 has not been
without its critics. From an examination of cases and treaties, we can summarize
the criticisms as follows: (1) Artificial presumptions, especially conclusive ones,
are not favored. (2) Such a rule frequently (as in the present case) produces
results which 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 of the courts to seek the truth and to provide a remedy for a
wrong committed by any branch of government. In light 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 doctrine of stare decisis.
The maxim is "Stare decisis et non quieta movere," which simply suggests that
we stand by precedents and not 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 stated in Daniel's Adm'r v. Hoofnel, 287 Ky 834, 155 S.W. 2d 469, 471-72
(1941) (citations omitted):

The force of the rule depends upon the nature of the question to
be decided and the extent of the disturbance of rights and
practices which a change in the interpretation of the law or the
course of judicial opinions may create. Cogent considerations are
whether there is clear error and urgent reasons "for neither justice
nor wisdom requires a court to go from one doubtful 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 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 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 mindful 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 or presumption that so provides.

Lastly, we address the premises that the equality of the various branches of
government requires that we shut our eyes to constitutional failings and other
errors of our coparceners in government. We simply do not agree. Section 26 of
the Kentucky Constitution provides that any law contrary to the constitution is
"void." The proper exercise of judicial authority requires us to recognize any law
which is unconstitutional and to declare it void. Without belaboring 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 of government — are brought to light and corrected. To countenance an
artificial rule of law that silences our voices when confronted with violations of
our constitution is not acceptable to this court.

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

We therefore overrule Lafferty v. Huffman and all other cases following the so-

called enrolled bill doctrine, to the extent that there is no longer a conclusive
presumption that an enrolled bill is valid. . . . (Emphasis mine.)

Undeniably, the value-added tax system may have its own merits to commend its continued
adoption, and the proposed widening of its base could achieve laudable governmental
objectives if properly formulated and conscientiously implemented. We would like to believe,
however, that ours is not only an enlightened democracy nurtured by a policy of transparency
but one where the edicts of the fundamental law are sacrosanct for all, barring none. While the
realization of the lofty ends of this administration should indeed be the devout wish of all,
likewise barring none, it can never be justified by methods which, even if unintended, are
suggestive of Machiavellism.

Accordingly, I vote to grant the instant petitions and to invalidate Republic Act No. 7716 for
having been enacted in violation of Section 24, Article VI of the Constitution.

DAVIDE, JR., J.:

The legislative history of R.A. No. 7716, as highlighted in the Consolidated Memorandum for the
public respondents submitted by the Office of the Solicitor General, demonstrates beyond doubt
that it was passed in violation or deliberate disregard of mandatory provisions of the Constitution
and of the rules of both chambers of Congress relating to the enactment of bills.

I therefore vote to strike down R.A. No. 7716 as unconstitutional and as having been enacted
with grave abuse of discretion.

The Constitution provides for a bicameral Congress. Therefore, no bill can be enacted into law
unless it is approved by both chambers — the Senate and the House of Representatives
(hereinafter House). Otherwise stated, each chamber may propose and approve a bill, but until
it is submitted to the other chamber and passed by the latter, it cannot be submitted to the
President for its approval into law.

Paragraph 2, Section 26, Article VI of the Constitution provides:

No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the journal.

The "three readings" refers to the three readings in both chambers.

There are, however, bills which must originate exclusively in the House. Section 24, Article VI of
the Constitution enumerates them:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.

Webster's Third New International Dictionary 1 defines originate as follows:

 vt 1: to cause the beginning of: give rise to: INITIATE . . . 2. to start (a person or
thing) on a course or journey . . . vi: to take or have origin: be derived: ARISE,
BEGIN, START . . .

Black's Law Dictionary 2 defines the word exclusively in this wise:

Apart from all others; only; solely; substantially all or for the greater part. To the
exclusion of all others; without admission of others to participation; in a manner
to exclude.

In City Mayor vs. The Chief of Philippine Constabulary,3 this Court said:

The term "exclusive" in its usual and generally accepted sense, means
possessed to the exclusion of others; appertaining to the subject alone, not
including, admitting or pertaining to another or others, undivided, sole. (15 Words
and Phrases, p. 510, citing Mitchel v. Tulsa Water, Light, Heat and Power Co., 95
P. 961, 21 Okl. 243; and p. 513, citing Commonwealth v. Superintendent of
House of Correction, 64 Pa. Super. 613, 615).

Indisputably then, only the House can cause the beginning or initiate the passage of any
appropriation, revenue, or tarriff bill, any bill increasing the public debt, any bill of local
application, or any private bill. The Senate can only "propose or concur with amendments."

Under the Rules of the Senate, the first reading is the reading of the title of the bill and its
referral to the corresponding committee; the second reading consists of the reading of the bill in
the form recommended by the corresponding committee; and the third reading is the reading of
the bill in the form it will be after approval on second reading. 4 During the second reading, the
following takes place:

(1) Second reading of the bill;

(2) Sponsorship by the Committee Chairman or any member designated by the

corresponding committee;

(3) If a debate ensues, turns for and against the bill shall be taken alternately;

(4) The sponsor of the bill closes the debate;

(5) After the close of the debate, the period of amendments follows;

(6) Then, after the period of amendments is closed, the voting on the bill on
second reading. 5

After approval on second readings, printed copies thereof in its final form shall be distributed to
the Members of the Senate at least three days prior to the third reading, except in cases of
certified bills. At the third reading, the final vote shall be taken and the yeas and nays shall be
entered in the Journal. 6
Under the Rules of the House, the first reading of a bill consists of a reading of the number, title,
and author followed by the referral to the appropriate committees; 7 the second reading consists
of the reading in full of the bill with the amendments proposed by the committee, it any; 8 and
the third reading is the reading of the bill in the form as approved on second reading and takes
place only after printed copies thereof in its final form have been distributed to the Members at
least three days before, unless the bill is
certified.9 At the second reading, the following takes place:

(1) Reading of the bill;

(2) Sponsorship;

(3) Debates;

(4) Period of Amendments; and

(5) Voting on Second Reading. 10

At the third reading, the votes shall be taken immediately and the yeas and nays entered in the
Journal. 11

Clearly, whether in the Senate or in the House, every bill must pass the three readings on
separate days, except when the bill is certified. Amendments to the bill on third reading are
constitutionally prohibited. 12

After its passage by one chamber, the bill should then be transmitted to the other chamber for
its concurrence. Section 83, Rule XIV of the Rules of the House expressly provides:

Sec. 83. Transmittal to Senate. — The Secretary General, without need of

express order, shall transmit to the Senate for its concurrence all the bills and
joint or concurrent resolutions approved by the House or the amendments of the
House to the bills or resolutions of the Senate, as the case may be. If the
measures approved without amendments are bills or resolutions of the Senate,
or if amendments of the Senate to bills of the House are accepted, he shall
forthwith notify the Senate of the action taken.

Simplified, this rule means that:

1. As to a bill originating in the House:

(a) Upon its approval by the House, the bill shall be transmitted to
the Senate;

(b) The Senate may approve it with or without amendments;

(c) The Senate returns the bill to the House;

(d) The House may accept the Senate amendments; if it does not,
the Secretary General shall notify the Senate of that action. As
 hereinafter be shown, a request for conference shall then be in
order.

2. As to bills originating in the Senate;

(a) Upon its approval by the Senate, the bill shall be transmitted to
the House;

(b) The House may approve it with or without amendments;

(c) The House then returns it to the Senate, informing it of the

action taken;

(d) The Senate may accept the House amendements; if it does

not, it shall notify the House and make a request for conference.

The transmitted bill shall then pass three readings in the other chamber on separate days.
Section 84, Rule XIV of the Rules of the House states:

Sec. 84. Bills from the Senate. — The bills, resolutions and communications of
the Senate shall be referred to the corresponding committee in the same manner
as bills presented by Members of the House.

and Section 51, Rule XXIII of the Rules of the Senate provides:

Sec. 51. Prior to their final approval, bills and joint resolutions shall be read at
least three times.

It is only when the period of disagreement is reached, i.e., amended proposed by one chamber

to a bill originating from the other are not accepted by the latter, that a request for conference is
made or is in order. The request for conference is specifically covered by Section 26, Rule XII of
the Rules of the Senate which reads:

Sec. 26. In the event that the Senate does not agree with the House of
Representatives on the provision of any bill or joint resolution, the differences
shall be settled by a conference committee of both Houses which shall meet
within ten days after its composition.

and Section 85, Rule XIV of the Rules of the House which reads:

Sec. 85. Conference Committee Reports. — In the event that the House does not
agree with the Senate on the amendments to any bill or joint resolution, the
differences may be settled by conference committees of both Chambers.

The foregoing provisions of the Constitution and the Rules of both chambers of Congress are
mandatory.

In his Treatise On the Constitutional Limitations, 13 more particularly on enactment of bill, Cooley

states:
 Where, for an instance, the legislative power is to be exercised by two houses,
and by settled and well-understood parliamentary law these two houses are to
hold separate sessions for their deliberations, and the determination of the one
upon a proposes law is to be submitted to the separate determination of the
other, the constitution, in providing for two houses, has evidently spoken in
reference to this settled custom, incorporating it as a rule of constitutional
interpretation; so that it would require no prohibitory clause to forbid the two
houses from combining in one, and jointly enacting laws by the vote of a majority
of all. All those rules which are of the essentials of law-making must be observed
and followed; and it is only the customary rules of order and routine, such as in
every deliberative body are always understood to be under its control, and
subject to constant change at its will, that the constitution can be understood to
have left as matters of discretion, to be established, modified, or abolished by the
bodies for whose government in non-essential matters they exist.

In respect of appropriation, revenue, or tariff bills, bills increasing the public debt, bills of local
application, or private bills, the return thereof to the House after the Senate shall have
"proposed or concurred with amendments" for the former either to accept or reject the
amendments would not only be in conformity with the foregoing rules but is also implicit from
Section 24 of Article VI.

With the foregoing as our guiding light, I shall now show the violations of the Constitution and of
the Rules of the Senate and of the House in the passage of R.A. No. 7716.

VIOLATIONS OF SECTION 24, ARTICLE VI

OF THE CONSTITUTION:

First violation. — Since R.A. No. 7716 is a revenue measure, it must originate exclusively in the
House — not in the Senate. As correctly asserted by petitioner Tolentino, on the face of the
enrolled copy of R.A. No. 7716, it is a "CONSOLIDATION OF HOUSE BILL NO. 11197 AND
SENATE BILL NO. 1630." In short, it is an illicit marriage of a bill which originated in the House
and a bill which originated in the Senate. Therefore, R.A. No. 7716 did not originate
exclusively in the House.

The only bill which could serve as a valid basis for R.A. No. 7716 is House Bill (HB) No. 11197.
This bill, which is the substitute bill recommended by the House Committee on Ways and
Means in substitution of House Bills Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9397,
10012, and 10100, and covered by its Committee Report No. 367, 14 was approved on third
reading by the House on 17 November 1993. 15 Interestingly, HB No. 9210, 16 which was filed by
Representative Exequiel B. Javier on 19 May 1993, was certified by the President in his letter to
Speaker Jose de Venecia, Jr. of 1 June 1993. 17 Yet, HB No. 11197, which substituted HB No.
9210 and the others above-stated, was not. Its certification seemed to have been entirely
forgotten.

On 18 November 1993, the Secretary-General of the House, pursuant to Section 83, Rule XIV
of the Rules of the House, transmitted to the President of the Senate HB No. 11197 and
requested the concurrence of the Senate therewith. 18

However, HB No. 11197 had passed only its first reading in that Senate by its referral to its
Committee on Ways and Means. That Committee never deliberated on HB No. 11197 as it
should have. It acted only on Senate Bill (SB) No. 1129 19 introduced by Senator Ernesto F.
Herrera on 1 March 1993. It then prepared and proposed SB No. 1630, and in its Committee
Report No.
20 21
349   which was submitted to the Senate on 7 February 1994,   it recommended that SB No.
1630 be approved "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197." 22 It must be carefully noted that SB No. 1630 was proposed and
submitted for approval by the Senate in SUBSTITUTION of SB No. 1129, and not HB No.
11197. Obviously, the principal measure which the Committee deliberated on and acted
upon was SB No. 1129 and not HB No. 11197. The latter, instead of being the only measure to
be taken up, deliberated upon, and reported back to the Senate for its consideration on second
reading and, eventually, on third reading, was, at the most, merely given by the Committee a
passing glance.

This specific unequivocal action of the Senate Committee on Ways and Means, i.e., proposing
and recommending approval of SB No. 1630 as a substitute for or in substitution of SB No. 1129
demolishes at once the thesis of the Solicitor General that:

Assuming that SB 1630 is distinct from HB 11197, amendment by substitution is

within the purview of Section 24, Article VI of the Constitution.

because, according to him, (a) "Section 68, Rule XXIX of the Rules of the Senate authorizes an
amendment by substitution and the only condition required is that "the text thereof is submitted
in writing"; and (b) "[I]n Flint vs. Stone Tracy Co. (220 U.S. 107) the United Stated Supreme
Court, interpreting the provision in the United States Constitution similar to Section 24, Article VI
of the Philippine Constitution, stated that the power of the Senate to amend a revenue bill
includes substitution of an entirely new measure for the one originally proposed by the House of
Representatives." 23

This thesis is utterly without merit. In the first place, it reads into the Committee Report
something which it had not contemplated, that is, to propose SB No. 1630 in substitution of HB
No. 11197; or speculates that the Committee may have committed an error in stating that it is
SB No. 1129, and not HB No. 11197, which is to be substituted by SB No. 1630. Either, of
course, is unwarranted because the words of the Report, solemnly signed by the Chairman,
Vice-Chairman (who dissented), seven members, and three ex-officio
members, 24 leave no room for doubt that although SB No. 1129, P.S. Res No. 734, and HB No.
11197 were referred to and considered by the Committee, it had prepared the attached SB No.
1630 which it recommends for approval "in substitution of S.B. No. 11197, taking into
consideration P.S. No. 734 and H.B. No. 11197 with Senators Herrera, Angara, Romulo, Sotto,
Ople and Shahani as authors." To do as suggested would be to substitute the judgment of the
Committee with another that is completely inconsistent with it, or, simply, to capriciously ignore
the facts.

In the second place, the Office of the Solicitor General intentionally made it appear, to mislead
rather than to persuade us, that in Flint vs. Stone Tracy
Co. 25 The U.S. Supreme Court ruled, as quoted by it in the Consolidated Memorandum for
Respondents, as follows: 26

The Senate has the power to amend a revenue bill. This power to amend is not
confined to the elimination of provisions contained in the original act, but
embraces as well the addition of such provisions thereto as may render the
 original act satisfactory to the body which is called upon to support it. It has, in
fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.

xxx xxx xxx

It is contended in the first place that this section of the act is unconstitutional,
because it is a revenue measure, and originated in the Senate in violation of
Section 7 of article 1 of the Constitution, providing that "all bills for raising
revenue shall originate in the House of Representatives, but the Senate may
propose or concur with the amendments, as on other bills."

The first part is not a statement of the Court, but a summary of the arguments of counsel in one
of the companion cases (No. 425, entitled, "Gay vs. Baltic Mining Co."). The second part is the
second paragraph of the opinion of the Court delivered by Mr. Justice Day. The
misrepresentation that the first part is a statement of the Court is highly contemptuous. To show
such deliberate misrepresentation, it is well to quote what actually are found in 55 L.Ed. 408,
410, to wit:

Messrs. Charles A. Snow and Joseph H. Knight filed a brief for appellees in No.
425:

xxx xxx xxx

The Senate has the power to amend a revenue bill. This power to amend is not
confined to the elimination of provisions contained in the original act, but
embraces as well the addition of such provisions thereto as may render the
original act satisfactory to the body which is called upon to support it. It has, in
fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.

Brake v. Collison, 122 Fed. 722.

Mr. James L. Quackenbush filed a statement for appellees in No. 442.

Solicitor General Lehmann (by special leave) argued the cause for the United
States on reargument.

Mr. Justice Day delivered the opinion of the court:

These cases involve the constitutional validity of 38 of the act of

Congress approved August 5, 1909, known as "the corporation
tax" law. 36 Stat. at L. 11, 112-117, chap. 6, U.S. Comp. Stat.
Supp. 1909, pp. 659, 844-849.

It is contended in the first place that this section of the act is

unconstitutional, because it is a revenue measure, and originated
in the Senate in violation of 7 of article 1 of the Constitution,
providing the "all bills for raising revenue shall originate in the
 House of Representatives, but the Senate may propose or concur
with the amendments, as on other bills." The history of the act is
contained in the government's brief, and is accepted as correct, no
objection being made to its accuracy.

This statement shows that the tariff bill of which the section under
consideration is a part, originated in the House of
Representatives, and was there a general bill for the collection of
revenue. As originally introduced, it contained a plan of
inheritance taxation. In the Senate the proposed tax was removed
from the bill, and the corporation tax, in a measure, substituted
therefor. The bill having properly originated in the House, we
perceive no reason in the constitutional provision relied upon why
it may not be amended in the Senate in the manner which it was
in this case. The amendment was germane to the subject-matter
of the bill, and not beyond the power of the Senate to propose.
(Emphasis supplied)

x x x           x x x          x x x

As shown above, the underlined portions were deliberately omitted in the quotation made by the
Office of the Solicitor General.

In the third place, a Senate amendment by substitution with an entirely new bill of a bill, which
under Section 24, Article VI of the Constitution can only originate exclusively in the House, is not
authorized by said Section 24. Flint vs. Stone Tracy Co. cannot be invoked in favor of such a
view. As pointed out by Mr. Justice Florenz D. Regalado during the oral arguments of these
cases and during the initial deliberations thereon by the Court, Flint involves a Senate
amendment to a revenue bill which, under the United States Constitution, should originate from
the House of Representatives. The amendment consisted of the substitution of a corporation tax
in lieu of the plan of inheritance taxation contained in a general bill for the collection of revenue
as it came from the House of Representatives where the bill originated. The constitutional
provision in question is Section 7, Article I of the United States Constitution which reads:

Sec. 7. Bills and Resolutions. — All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur with
Amendments, as on other Bills.

This provision, contrary to the misleading claim of the Solicitor General, is not similar to Section
24, Article VI of our Constitution, which for easy comparison is hereunder quoted again:

All appropriation, revenue or tariff bills, bills authorizing increase of the public
debt, bills of local application, and private bills shall originate exclusively in the
House of Representatives, but the Senate may propose or concur with
amendments.

Note that in the former the word exclusively does not appear. And, in the latter, the phrase "as
on other Bill," which is found in the former, does not appear. These are very significant in
determining the authority of the upper chamber over the bills enumerated in Section 24. Since
the origination is not exclusively vested in the House of Representatives of the United States,
the Senate's authority to propose or concur with amendments is necessarily broader. That
broader authority is further confirmed by the phrase "as on other Bills," i.e., its power to propose
or concur with amendments thereon is the same as in ordinary bills. The absence of this phrase
in our Constitution was clearly intended to restrict or limit the Philippine Senate's power to
propose or concur with amendments. In the light of the exclusivity of origination and the
absence of the phrase "as on other Bills," the Philippine Senate cannot amend by substitution
with an entirely new bill of its own any bill covered by Section 24 of Article VI which the House of
Representatives transmitted to it because such substitution would indirectly violate Section 24.

These obvious substantive differences between Section 7, Article I of the U.S. Constitution and
Section 24, Article VI of our Constitution are enough reasons why this Court should neither
allow itself to be misled by Flint vs. Stone nor be awed by Rainey vs. United States 27 and the
opinion of Messrs. Ogg and Ray 28 which the majority cites to support the view that the power of
the U.S. Senate to amend a revenue measure is unlimited. Rainey concerns the Tariff Act of
1909 of the United States of America and specifically involved was its Section 37 which was an
amendment introduced by the U.S. Senate. It was claimed by the petitioners that the said
section is a revenue measure which should originate in the House of Representatives. The U.S.
Supreme Court, however, adopted and approved the finding of the court a quo that:

the section in question is not void as a bill for raising revenue originating in the
Senate, and not in the House of Representatives. It appears that the section was
proposed by the Senate as an amendment to a bill for raising revenue which
originated in the House. That is sufficient.

Messrs. Ogg and Ray, who are professors emeritus of political science, based their statement
not even on a case decided by the U.S. Supreme Court but on their perception of what Section
7, Article I of the U.S. Constitution permits. In the tenth edition (1951) of their work, they state:

Any bill may make its first appearance in either house, except only that bills for
raising revenue are required by the constitution to "originate" in the House of
Representatives. Indeed, through its right to amend revenue bills, even to the
extent of substituting new ones, the Senate may, in effect, originate them also. 29

Their "in effect" conclusion is, of course, logically correct because the word exclusively does not
appear in said Section 7, Article I of the U.S. Constitution.

Neither can I find myself in agreement with the view of the majority that the Constitution does
not prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from
the House so long as action by the Senate as a body is withheld pending receipt of the House
bill, thereby stating, in effect, that S.B. No. 1129 was such an anticipatory substitute bill, which,
nevertheless, does not seem to have been considered by the Senate except only after its
receipt of H.B. No. 11179 on 23 November 1993 when the process of legislation in respect of it
began with a referral to the Senate Committee on Ways and Means. Firstly, to say that the
Constitution does not prohibit it is to render meaningless Section 24 of Article VI or to sanction
its blatant disregard through the simple expedient of filing in the Senate of a so-called
anticipatory substitute bill. Secondly, it suggests that S.B. No. 1129 was filed as an anticipatory
measure to substitute for H.B. No. 11179. This is a speculation which even the author of S.B.
No. 1129 may not have indulged in. S.B. No. 1129 was filed in the Senate by Senator Herrera
on 1 March 1993. H.B. No. 11197 was approved by the House on third reading only on 17
November 1993. Frankly, I cannot believe that Senator Herrera was able to prophesy that the
House would pass any VAT bill, much less to know its provisions. That "it does not seem that
the Senate even considered" the latter not until after its receipt of H.B. No. 11179 is another
speculation. As stated earlier, S.B. No. 1129 was filed in the Senate on 1 March 1993, while
H.B. No. 11197 was transmitted to the Senate only on 18 November 1993. There is no evidence
on record to show that both were referred to the Senate Committee on Ways and Means at the
same time. Finally, in respect of H.B. No. 11197, its legislative process did not begin with its
referral to the Senate's Ways and Means Committee. It began upon its filing, as a Committee
Bill of the House of Committee on Ways and Means, in the House.

Second violation. — Since SB No. 1129 is a revenue measure, it could not even be validly
introduced or initiated in the Senate. It follows too, that the Senate cannot validly act thereon.

Third violation. — Since SB No. 1129 could not have been validly introduced in the Senate and
could not have been validly acted on by the Senate, then it cannot be substituted by another
revenue measure, SB No. 1630, which the Senate Committee on Ways and Means introduced
in substitution of SB No. 1129. The filing or introduction in the Senate of SB No. 1630 also
violated Section 24, Article VI of the Constitution.

VIOLATIONS OF SECTION 26(2), ARTICLE VI

OF THE CONSTITUTION:

First violation. — The Senate, despite its lack of constitutional authority to consider SB No. 1630
or SB No. 1129 which the former substituted, opened deliberations on second reading of SB No.
1630 on 8 February 1994. On 24 March 1994, the Senate approved it on second reading and
on third reading. 30 That approval on the same day violated Section 26(2), Article VI of the
Constitution. The justification therefor was that on 24 February 1994 the President certified to
"the necessity of the enactment of SB No. 1630 . . . to meet a public emergency." 31

I submit, however, that the Presidential certification is void ab initio not necessarily for the
reason adduced by petitioner Kilosbayan, Inc., but because it was addressed to the Senate for a
bill which is prohibited from originating therein. The only bill which could be properly certified on
permissible constitutional grounds even if it had already been transmitted to the Senate is HB
No. 11197. As earlier observed, this was not so certified, although HB No. 9210 (one of those
consolidated into HB No. 11197) was certified on 1 June 1993. 32

Also, the certification of SB No. 1630 cannot, by any stretch of the imagination, be extended to
HB No. 11197 because SB No. 1630 did not substitute HB No. 11197 but SB No. 1129.

Considering that the certification of SB No. 1630 is void, its approval on second and third
readings in one day violated Section 26(2), Article VI of the Constitution.

Second violation. — It further appears that on 24 June 1994, after the approval of SB No. 1630,
the Secretary of the Senate, upon directive of the Senate President, formally notified the House
Speaker of the Senate's approval thereof and its request for a bicameral conference "in view of
the disagreeing provisions of said bill and House Bill No. 11197." 33

It must be stressed again that HB No. 11197 was never submitted for or acted on second and
third readings in the Senate, and SB No. 1630 was never sent to the House for its concurrence.
Elsewise stated, both were only half-way through the legislative mill. Their submission to a
conference committee was not only anomalously premature, but violative of the constitutional
rule on three readings.

The suggestion that SB No. 1630 was not required to be submitted to the House for otherwise
the procedure would be endless, is unacceptable for, firstly, it violates Section 26, Rule XII of
the Rules of the Senate and Section 85, Rule XIV of the Rules of the House, and, secondly, it is
never endless. If the chamber of origin refuses to accept the amendments of the other chamber,
the request for conference shall be made.

VIOLATIONS OF THE RULES OF BOTH CHAMBERS;

GRAVE ABUSE OF DISCRETION.

The erroneous referral to the conference committee needs further discussion. Since S.B. No.
1630 was not a substitute bill for H.B. No. 11197 but for S.B. No. 1129, it (S.B. No. 1630)
remained a bill which originated in the Senate. Even assuming arguendo that it could be validly
initiated in the Senate, it should have been first transmitted to the House where it would undergo
three readings. On the other hand, since HB No. 11197 was never acted upon by the Senate on
second and third readings, no differences or inconsistencies could as yet arise so as to warrant
a request for a conference. It should be noted that under Section 83, Rule XIV of the Rules of
the House, it is only when the Senate shall have approved with amendments HB no. 11197 and
the House declines to accept the amendments after having been notified thereof that the
request for a conference may be made by the House, not by the Senate. Conversely, the
Senate's request for a conference would only be proper if, following the transmittal of SB No.
1630 to the House, it was approved by the latter with amendments but the Senate rejected the
amendments.

Indisputably then, when the request for a bicameral conference was made by the Senate, SB
No. 1630 was not yet transmitted to the House for consideration on three readings and HB No.
11197 was still in the Senate awaiting consideration on second and third readings. Their referral
to the bicameral conference committee was palpably premature and, in so doing, both the
Senate and the House acted without authority or with grave abuse of discretion. Nothing, and
absolutely nothing, could have been validly acted upon by the bicameral conference committee.

GRAVE ABUSE OF DISCRETION COMMITTED BY

THE BICAMERAL CONFERENCE COMMITTEE.

Serious irregularities amounting to lack of jurisdiction or grave abuse of discretion were

committed by the bicameral conference committee.

First, it assumed, and took for granted that SB No. 1630 could validly originate in the Senate.
This assumption is erroneous.

Second, it assumed that HB No. 11197 and SB No. 1630 had properly passed both chambers of
Congress and were properly and regularly submitted to it. As earlier discussed, the assumption
is unfounded in fact.

Third, per the bicameral conference committee's proceedings of 19 April 1994, Representative
Exequiel Javier, Chairman of the panel from the House, initially suggested that HB No. 11197
should be the "frame of reference," because it is a revenue measure, to which Senator Ernesto
Maceda concurred. However, after an incompletely recorded reaction of Senator Ernesto
Herrera, Chairman of the Senate panel, Representative Javier seemed to agree that "all
amendments will be coming from the Senate." The issue of what should be the "frame of
reference" does not appear to have been resolved. These facts are recorded in this wise, as
quoted in the Consolidated Memorandum for Respondents: 34

CHAIRMAN JAVIER.

First of all, what would be the basis, no, or framework para huwag naman
mawala yung personality namin dito sa bicameral, no, because the bill originates
from the House because this is a revenue bill, so we would just want to ask, we
make the House Bill as the frame of reference, and then everything will just be
inserted?

HON. MACEDA.

Yes. That's true for every revenue measure. There's no other way. The House
Bill has got to be the base. Of course, for the record, we know that this is an
administration; this is certified by the President and I was about to put into the
records as I am saying now that your problem about the impact on prices on the
people was already decided when the President and the administration sent this
to us and certified it. They have already gotten over that political implication of
this bill and the economic impact on prices.

CHAIRMAN HERRERA.

Yung concern mo about the bill as the reference in this discussion is something
that we can just . . .

CHAIRMAN JAVIER.

We will just . . . all the amendments will be coming from the Senate.

(BICAMERAL CONFERENCE ON MAJOR DIFFERENCES BETWEEN HB NO.

11197 AND SB NO. 1630 [Cte. on Ways & Means] APRIL 19, 1994, II-6 and II-7;
Emphasis supplied)

These exchanges would suggest that Representative Javier had wanted HB No. 11197 to be
the principal measure on which reconciliation of the differences should be based. However,
since the Senate did not act on this Bill on second and third readings because its Committee on
Ways and Means did not deliberate on it but instead proposed SB No. 1630 in substitution of SB
No. 1129, the suggestion has no factual basis. Then, when finally he agreed that "all
amendments will be coming from the Senate," he in fact withdrew the former suggestion and
agreed that SB No. 1630, which is the Senate version of the Value Added Tax (VAT) measure,
should be the "frame of reference." But then SB No. 1630 was never transmitted to the House
for the latter's concurrence. Hence, it cannot serve as the "frame of reference" or as the basis
for deliberation. The posture taken by Representative Javier also indicates that SB No. 1630
should be taken as the amendment to HB No. 11197. This, too, is unfounded because SB No.
1630 was not proposed in substitution of HB No. 11197.
Since SB No. 1630 did not pass three readings in the House and HB No. 11197 did not pass
second and third readings in the Senate, it logically follows that no disagreeing provisions had
as yet arisen. The bicameral conference committee erroneously assumed the contrary.

Even granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved
by both chambers of Congress and validly referred to the bicameral conference committee, the
latter had very limited authority thereon. It was created "in view of the disagreeing provisions of"
the two bills. 35 Its duty was limited to the reconciliation of disagreeing provisions or the
resolution of differences or inconsistencies. The committee recognized that limited authority in
the opening paragraph of its Report 36 when it said:

The Conference Committee on the disagreeing provisions of House Bill No.

11197 . . . and Senate Bill No. 1630 . . . .

Under such limited authority, it could only either (a) restore, wholly or partly, the specific
provisions of HB No. 11197 amended by SB No. 1630, (b) sustain, wholly or partly, the Senate's
amendments, or (c) by way of a compromise, to agree that neither provisions in HB No. 11197
amended by the Senate nor the latter's amendments thereto be carried into the final form of the
former.

But as pointed out by petitioners Senator Raul Roco and Kilosbayan, Inc., the bicameral
conference committee not only struck out non-disagreeing provisions of HB No. 11197 and SB
No. 1630, i.e., provisions where both bills are in full agreement; it added more activities or
transactions to be covered by VAT, which were not within the contemplation of both bills.

Since both HB No. 11197 and SB No. 1630 were still half-cooked in the legislative vat, and were
not ready for referral to a conference, the bicameral conference committee clearly acted without
jurisdiction or with grave abuse of discretion when it consolidated both into one bill which
became R.A. No. 7716.

APPROVAL BY BOTH CHAMBERS OF CONFERENCE

COMMITTEE REPORT AND PROPOSED BILL DID
NOT CURE CONSTITUTIONAL INFIRMITIES.

I cannot agree with the suggestion that since both the Senate and the House had approved the
bicameral conference committee report and the bill proposed by it in substitution of HB No.
11197 and SB No. 1630, whatever infirmities may have been committed by it were cured by
ratification. This doctrine of ratification may apply to minor procedural flaws or tolerable breachs
of the parameters of the bicameral conference committee's limited powers but never to
violations of the Constitution. Congress is not above the Constitution. In the instant case, since
SB No. 1630 was introduced in violation of Section 24, Article VI of the Constitution, was passed
in the Senate in violation of the "three readings" rule, and was not transmitted to the House for
the completion of the constitutional process of legislation, and HB No. 11197 was not likewise
passed by the Senate on second and third readings, neither the Senate nor the House could
validly approve the bicameral conference committee report and the proposed bill.

In view of the foregoing, the conclusion is inevitable that for non-compliance with mandatory
provisions of the Constitution and of the Rules of the Senate and of the House on the enactment
of laws, R.A. No. 7716 is unconstitutional and, therefore, null and void. A discussion then of the
instrinsic validity of some of its provisions would be unnecessary.
The majority opinion, however, invokes the enrolled bill doctrine and wants this Court to desist
from looking behind the copy of the assailed measure as certified by the Senate President and
the Speaker of the House. I respectfully submit that the invocation is misplaced. First, as to the
issue of origination, the certification in this case explicitly states that R.A. No. 7716 is a
"consolidation of House Bill No. 11197 and Senate Bill No. 1630." This is conclusive evidence
that the measure did not originate exclusively in the House. Second, the enrolled bill doctrine is
of American origin, and unquestioned fealty to it may no longer be justified in view of the
expanded jurisdiction 37 of this Court under Section 1, Article VIII of our Constitution which now
expressly grants authority to this Court 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 the
Government.

Third, even under the regime of the 1935 Constitution which did not contain the above
provision, this Court, through Mr. Chief Justice Makalintal, in Astorga vs.
Villegas, 38 declared that it cannot be truly said that Mabanag vs. Lopez
Vito 39 has laid to rest the question of whether the enrolled bill doctrine or the journal
entry rule should be adhered to in this jurisdiction, and stated:

As far as Congress itself is concerned, there is nothing sacrosanct in the

certification made by the presiding officers. It is merely a mode of authentication.
The lawmaking process in Congress ends when the bill is approved 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, it is the approval of
Congress and not the signatures of the presiding officers that is essential. Thus
the (1935) Constitution says that "[e]very bill passed by 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 in the
passage" and it follows that if a bill, otherwise fully enacted as a law, is not
attested by the presiding officer, other proof that it has "passed both houses will
satisfy the constitutional requirement."

Fourth, even in the United States, the enrolled bill doctrine has been substantially undercut. This
is shown in the disquisitions of Mr. Justice Reynato S. Puno in his dissenting opinion,
citing Sutherland, Statutory Construction.

Last, the pleadings of the parties have established beyond doubt that HB No. 11197 was not
acted on second and third readings in the Senate and SB No. 1630, which was approved by the
Senate on second and third readings in substitution of SB No. 1129, was never transmitted to
the House for its passage. Otherwise stated, they were only passed in their respective chamber
of origin but not in the other. In no way can each become a law under paragraph 2, Section 26,
Article VI of the Constitution. For the Court to close its eyes to this fact because of the enrolled
bill doctrine is to shrink its duty to hold "inviolate what is decreed by the Constitution." 40

I vote then to GRANT these petitions and to declare R.A. No. 7716 as unconstitutional.

 
ROMERO, J.:

Few issues brought before this Court for resolution have roiled the citizenry as much as the
instant case brought by nine petitioners which challenges the constitutionality of Republic Act
No. 7716 (to be referred to herein as the "Expanded Value Added Tax" or EVAT law to
distinguish it from Executive Order No. 273 which is the VAT law proper) that was enacted on
May 5, 1994. A visceral issue, it has galvanized the populace into mass action and strident
protest even as the EVAT proponents have taken to podia and media in a post facto information
campaign.

The Court is confronted here with an atypical case. Not only is it a vatful of seething controversy
but some unlikely petitioners invoke unorthodox remedies. Three Senator-petitioners would
nullify a statute that bore the indispensable stamp of approval of their own Chamber with two of
them publicly repudiating what they had earlier endorsed. With two former colleagues, one of
them an erstwhile Senate President, making common cause with them, they would stay the
implementation by the Executive Department of a law which they themselves have initiated.
They address a prayer to a co-equal Department to probe their official acts for any procedural
irregularities they have themselves committed lest the effects of these aberrations inflict such
damage or irreparable loss as would bring down the wrath of the people on their heads.

To the extent that they perceive that a vital cog in the internal machinery of the Legislature has
malfunctioned from having operated in blatant violation of the enabling Rules they have
themselves laid down, they would now plead that this other Branch of Government step in,
invoking the exercise of what is at once a delicate and awesome power. Undoubtedly, the case
at bench is as much a test for the Legislature as it is for the Judiciary.

A backward glance on the Value Added Tax (VAT) is in order at this point.

The first codification of the country's internal revenue laws was effected with the enactment of
Commonwealth Act No. 466, commonly known as the 'National Internal Revenue Code' which
was approved on June 15, 1939 and took effect on July 1, 1939, although the provisions on the
income tax were made retroactive to January 1, 1939.

Since 1939 when the turnover tax was replaced by the manufacturer's sales tax,
the Tax Code had provided for a single-stage value-added tax on original sales
by manufacturers, producers and importers computed on the "cost deduction
method" and later, on the basis of the "tax credit method." The turnover tax was
re-introduced in 1985 by Presidential Decree No. 1991 (as amended by
Presidential Decree No. 2006). 1

In 1986, a tax reform package was approved by the Aquino Cabinet. It contained twenty-nine
measures, one of which proposed the adoption of the VAT, as well as the simplification of the
sales tax structure and the abolition of the turnover tax.

Up until 1987, the system of taxing goods consisted of (a) an excise tax on
certain selected articles (b) fixed and percentage taxes on original and
subsequent sales, on importations and on milled articles and (c) mining taxes on
mineral products. Services were subjected to percentage taxes based mainly on
gross receipts. 2
On July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 273 which
adopted the VAT. From the former single-stage value-added tax, it introduced the multi-stage
VAT system where "the value-added tax is imposed on the sale of and distribution process
culminating in sale, to the final consumer. Generally described, the taxpayer (the seller)
determines his tax liability by computing the tax on the gross selling price or gross receipt
("output tax") and subtracting or crediting the earlier VAT on the purchase or importation of
goods or on the sale of service ("input tax") against the tax due on his own sale." 3

On January 1, 1988, implementing rules and regulations for the VAT were promulgated.
President Aquino then issued Proclamation No. 219 on February 12, 1988 urging the public and
private sectors to join the nationwide consumers' education campaign for VAT.

Soon after the implementation of Executive Order No. 273, its constitutionality was assailed
before this Court in the case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
Inc., et al. v. Tan. 4 The four petitioners sought to nullify the VAT law "for being unconstitutional
in that its enactment is not allegedly within the powers of the President; that the VAT is
oppressive, discriminatory, regressive, and violates the due process and equal protection
clauses and other provisions of the 1987 Constitution." 5 In dismissing the consolidated
petitions, this Court stated:

The Court, following the time-honored doctrine of separation of powers cannot

substitute its judgment for that of the President as to the wisdom, justice and
advisability of the VAT. The Court can only look into and determine whether or
not Executive Order No. 273 was enacted and made effective as law, in the
manner required by and consistent with, the Constitution, and to make sure that it
was not issued in grave abuse of discretion amounting to lack or excess of
jurisdiction; and, in this regard, the Court finds no reason to impede its
application or continued implementation. 6

Although declared constitutional, the VAT law was sought to be amended from 1992 on by a
series of bills filed in both Houses of Congress. In chronological sequence, these were:

HB/SB No. Date Filed in Congress

HB No. 253 - July 22, 1992

HB No. 771 - August 10, 1992
HB No. 2450 - September 9, 1992
Senate Res. No. 7347 - September 10, 1992
HB No. 7033 - February 3, 1993
SB No. 11298 - March 1, 1993
HB No. 8086 - March 9, 1993
HB No. 9030 - May 11, 1993
HB No. 9210 9 - May 19, 1993
HB No. 9297 - May 25, 1993
HB No. 10012 - July 28, 1993
HB No. 10100 - August 3, 1993
HB No. 11197 in substitution of HB Nos. 253, 771, 2450,
 7033, 8086, 9030, 9210, 9297, 10012 and
10100 10 - November 5, 1993

We now trace the course taken by H.B. No. 11197 and S.B. No. 1129.

HB/SB No.

HB No. 11197 was approved in the Lower House onsecond

reading - November 11, 1993

HB No. 11197 was approved in

the Lower House on third
reading and voted upon
with 114 Yeas and 12 Nays - November 17, 1993

HB No. 11197 was transmitted

to the Senate - November 18, 1993

Senate Committee on Ways and

Means submitted Com.
Report No. 349 recommeding
for approval SB No. 1630 in
substitution of SB No. 1129,
taking into consideration PS Res. No.
734 and HB No. 11197 11 - February 7, 1994

Certification by President Fidel V.

Ramos of Senate Bill No.
1630 for immediate enactment
to meet a public emergency - March 22, 1994

SB No. 1630 was approved by

the Senate on second and third
readings and subsequently
voted upon with 13 yeas, none
against and one abstention - March 24, 1994

Transmittal by the Senate to the

Lower House of a request
for a conference in view of
disagreeing provisions of
SB No. 1630 and HB NO.
11197 - March 24, 1994

The Bicameral Conference Committee

conducted various meetings to
reconcile the proposals on the
VAT - April 13, 19, 20, 21, 25
 The House agreed on the Conference
Committee Report - April 27, 1994

The Senate agreed on the Conference

Committee Report - May 2, 1994

The President signed Republic Act

No. 7716 - The Expanded
VAT Law 12 - May 5, 1994

Republic Act No. 7716 was

published in two newspapers
of general circulation - May 12, 1994

Republic Act No. 7716 became

effective - May 28, 1994

Republic Act No. 7716 merely expanded the base of the VAT law even as the tax retained its
multi-stage character.

At the oral hearing held on July 7, 1994, this Court delimited petitioners' arguments to the
following issues culled from their respective petitions.

PROCEDURAL ISSUES

Does Republic Act No. 7716 violate Article VI, Section 24, of the Constitution? 13

Does it violate Article VI, Section 26, paragraph 2, of the

Constitution? 14

What is the extent of the power of the Bicameral Conference Committee?

SUBSTANTIVE ISSUES

Does the law violate the following provisions in Article III (Bill of Rights) of the Constitution:

1. Section 1 15

2. Section 4 16

3. Section 5 17

4. Section 10 18

Does the law violate the following other provisions of the Constitution?

1. Article VI, Section 28, paragraph 1 19

 2. Article VI, Section 28, paragraph 3 20

As a result of the unedifying experience of the past where the Court had the propensity to steer
clear of questions it perceived to be "political" in nature, the present Constitution, in contrast,
has explicitly expanded judicial power to include the duty of the courts, especially the Supreme
Court, "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 the Government." 21 I
submit that under this explicit mandate, the Court is empowered to rule upon acts of other
Government entities for the purpose of determining whether there may have been, in fact,
irregularities committed tantamount to violation of the Constitution, which case would clearly
constitute a grave abuse of discretion on their part.

In the words of the sponsor of the above-quoted Article of the Constitution on the Judiciary, the
former Chief Justice Roberto R. Concepcion, "the judiciary is the final arbiter on the question of
whether or not a branch of 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 or lack of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.

This is the back ground of paragraph 2 of Section 1, which means that the courts cannot
hereafter exhibit its wonted reticence by claiming that such matters constitute a political
question." 22

In the instant petitions, this Court is called upon, not so much to exercise its traditional power of
judicial review as to determine whether or not there has indeed been a grave abuse of
discretion on the part of the Legislature amounting to lack or excess of jurisdiction.

Where there are grounds to resolve a case without touching on its constitutionality, the Court
will do so with utmost alacrity in due deference to the doctrine of separation of powers anchored
on the respect that must be accorded to the other branches of government which are
coordinate, coequal and, as far as practicable, independent of one another.

Once it is palpable that the constitutional issue is unavoidable, then it is time to assume
jurisdiction, provided that the following requisites for a judicial inquiry are met: that there must
be an actual and appropriate case; a personal and substantial interest of the party raising the
constitutional question; the constitutional question must be raised at the earliest possible
opportunity and the decision of the constitutional question must be necessary to the
determination of the case itself, the same being the lis mota of the case. 23

Having assured ourselves that the above-cited requisites are present in the instant petitions, we
proceed to take them up.

ARTICLE VI, SECTION 24

Some petitioners assail the constitutionality of Republic Act No. 7716 as being in violation of
Article VI, Section 24 of the Constitution which provides:

All appropriation, revenue or tariff bills, bills authorizing increase of the public
debt, bills of local application, and private bills, shall originate exclusively in the
 House of Representatives, but the Senate may propose or concur with
amendments.

In G.R. Nos. 115455 and 115781, petitioners argue:

(a) The bill which became Republic Act No. 7716 did not originate exclusively in the House of
Representatives. The Senate, after receiving H.B. No. 11197, submitted its own bill, S.B. No.
1630, and proceeded to vote and approve the same after second and third readings.

(b) The Senate exceeded its authority to "propose or concur with amendments" when it
submitted its own bill, S.B. No. 1630, recommending its approval "in substitution of S.B. No.
1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197."

(c) H.B. No. 11197 was not deliberated upon by the Senate. Neither was it voted upon by the
Senate on second and third readings, as what was voted upon was S.B. No. 1630.

Article VI, Section 24 is taken word for word from Article VI, Section 18 of the 1935 Constitution
which was, in turn, patterned after Article I, Section 7 (1) of the Constitution of the United States,
which states:

All bills for raising revenue shall originate in the House of Representatives, but
the Senate may propose or concur with amendments as on other bills.

The historical precedent for requiring revenue bills to originate in Congress is explained in the
U.S. case of Morgan v. Murray. 24

The constitutional requirement that all bills for raising revenue shall originate in
the House of Representatives stemmed from a remedial outgrowth of the historic
conflict between Parliament (i.e., Commons) and the Crown, whose ability to
dominate the monarchially appointive and hereditary Lords was patent. See 1
Story, Constitution, S 875 et seq., 5th Ed.; 1 Cooley, Constitutional Limitations,
pp. 267, 268, 8th Ed., 1 Sutherland, Statutory Construction, S 806, 3d Ed. There
was a measure of like justification for the insertion of the provision of article I, S
7, cl. 1, of the Federal Constitution. At that time (1787) and thereafter until the
adoption (in 1913) of the Seventeenth Amendment providing for the direct
election of senators, the members of the United States Senate were elected for
each state by the joint vote of both houses of the Legislature of the respective
states, and hence, were removed from the people . . .

The legislative authority under the 1935 Constitution being unicameral, in the form of the
National Assembly, it served no purpose to include the subject provision in the draft submitted
by the 1934 Constitutional Convention to the Filipino people for ratification.

In 1940, however, the Constitution was amended to establish a bicameral Congress of the
Philippines composed of a House of Representatives and a Senate.

In the wake of the creation of a new legislative machinery, new provisions were enacted
regarding the law-making power of Congress. The National Assembly explained how the final
formulation of the subject provision came about:
 The concurrence of both houses would be necessary to the enactment of a law.
However, all appropriation, revenue or tariff bills, bills authorizing an increase of
the public debt, bills of local application, and private bills, should originate
exclusively in the House of Representatives, although the Senate could propose
or concur with amendments.

In one of the first drafts of the amendments, it was proposed to give both houses
equal powers in lawmaking. There was, however, much opposition on the part of
several members of the Assembly. In another draft; the following provision, more
restrictive than the present provision in the amendment, was proposed and for
sometime was seriously considered:

All bills appropriating public funds, revenue or tariff bills, bills of

local application, and private bills shall originate exclusively in the
Assembly, but the Senate may propose or concur with
amendments. In case of disapproval by the Senate of any such
bills, the Assembly may repass the same by a two-thirds vote of
all its members, and thereupon, the bill so repassed shall be
deemed enacted and may be submitted to the President for
corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty days
from the opening of the next regular sessions of the same
legislative term, reapprove the same with a vote of two-thirds of all
the members of the Assembly. And upon such reapproval, the bill
shall be deemed enacted and may be submitted to the president
for corresponding action.

However, the special committee voted finally to report the present amending
provision as it is now worded; and in that form it was approved by the National
Assembly with the approval of Resolution No. 38 and later of Resolution No.
73. 25 (Emphasis supplied)

Thus, the present Constitution is identically worded as its 1935 precursor: "All appropriation,
revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and
private bills, shall originate exclusively in the House of Representatives, but the Senate may
propose or concur with amendments." (Emphasis supplied)

That all revenue bills, such as Republic Act No. 7716, should "originate exclusively in the House
of Representatives" logically flows from the more representative and broadly-based character of
this Chamber.

It is said that the House of Representatives being the more popular branch of the
legislature, being closer to the people, and having more frequent contacts with
them than the Senate, should have the privilege of taking the initiative in the
proposals of revenue and tax project, the disposal of the people's money, and the
contracting of public indebtedness.

These powers of initiative in the raising and spending of public funds enable the
House of Representatives not only to implement but even to determine the fiscal
policies of the government. They place on its shoulders much of the responsibility
 of solving the financial problems of the government, which are so closely related
to the economic life of the country, and of deciding on the proper distribution of
revenues for such uses as may best advance public interests. 26

The popular nature of the Lower House has been more pronounced with the inclusion of
Presidentially-appointed sectoral representatives, as provided in Article VI, Section 5 (2), of the
Constitution, thus: "The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three consecutive terms after
the ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other sectors as may be provided by
law, except the religious sector." (Emphasis supplied)

This novel provision which was implemented in the Batasang Pambansa during the martial law
regime 27 was eventually incorporated in the present Constitution in order to give those from the
marginalized and often deprived sector, an opportunity to have their voices heard in the halls of
the Legislature, thus giving substance and meaning to the concept of "people empowerment."

That the Congressmen indeed have access to, and consult their constituencies has been
demonstrated often enough by the fact that even after a House bill has been transmitted to the
Senate for concurrence, some Congressmen have been known to express their desire to
change their earlier official position or reverse themselves after having heard their constituents'
adverse reactions to their representations.

In trying to determine whether the mandate of the Constitution with regard to the initiation of
revenue bills has been preserved inviolate, we have recourse to the tried and tested method of
definition of terms. The term "originate" is defined by Webster's New International Dictionary
(3rd Edition, 1986) as follows: "v.i., to come into being; begin; to start."

On the other hand, the word "exclusively" is defined by the same Webster's Dictionary as "in an
exclusive manner; to the exclusion of all others; only; as, it is his, exclusively." Black's Law
Dictionary has this definition: "apart from all others; only; solely; substantially all or for the
greater part. To the exclusion of all other; without admission of others to participation; in a
manner to exclude. Standard Oil Co. of Texas v. State, Tex. Civ. App., 142 S.W. 2d 519, 521,
522, 523."

This Court had occasion to define the term "exclusive" as follows:

. . . In its usual and generally accepted sense, the term means possessed to the
exclusion of others; appertaining to the subject alone; not including, admitting or
pertaining to another or others; undivided, sole. 28

When this writer, during the oral argument of July 7, 1994, asked the petitioner in G.R. No.
115455 whether he considers the word "exclusively" to be synonymous with "solely," he replied
in the affirmative. 29

A careful examination of the legislative history traced earlier in this decision shows that the
original VAT law, Executive Order No. 273, was sought to be amended by ten House bills which
finally culminated in House Bill No. 11197, as well as two Senate bills. It is to be noted that the
first House Bill No. 253 was filed on July 22, 1992, and two other House bills followed in quick
succession on August 10 and September 9, 1992 before a Senate Resolution, namely, Senate
Res. No. 734, was filed on September 10, 1992 and much later, a Senate Bill proper, viz.,
Senate Bill No. 1129 on March 1, 1993. Undoubtedly, therefore, these bills originated or had
their start in the House and before any Senate bill amending the VAT law was filed. In point of
time and venue, the conclusion is ineluctable that Republic Act No. 7716, which is indisputably a
revenue measure, originated in the House of Representatives in the form of House Bill No. 253,
the first EVAT bill.

Additionally, the content and substance of the ten amendatory House Bills filed over the roughly
one-year period from July 1992 to August 1993 reenforce the position that these revenue bills,
pertaining as they do, to Executive Order No. 273, the prevailing VAT law, originated in the
Lower House.

House Bill Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 were
intended to restructure the VAT system by exempting or imposing the tax on certain items or
otherwise introducing reforms in the mechanics of implementation. 30 Of these, House Bill No.
9210 was favored with a Presidential certification on the need for its immediate enactment to
meet a public emergency. Easily the most comprehensive, it noted that the revenue
performance of the VAT, being far from satisfactory since the collections have always fallen
short of projections, "the system is rendered inefficient, inequitable and less comprehensive."
Hence, the Bill proposed several amendments designed to widen the tax base of the VAT and
enhance its administration. 31

That House Bill No. 11197 being a revenue bill, originated from the Lower House was
acknowledged, in fact was virtually taken for granted, by the Chairmen of the Committee on
Ways and Means of both the House of Representatives and the Senate. Consequently, at the
April 19, 1994 meeting of the Bicameral Conference Committee, the Members agreed to make
the House Bill as the "frame of reference" or "base" of the discussions of the Bicameral
Conference Committee with the "amendments" or "insertions to emanate from the Senate." 32

As to whether the bills originated exclusively in the Lower House is altogether a different matter.
Obviously, bills amendatory of VAT did not originate solely in the House to the exclusion of all
others for there were P.S. Res. No. 734 filed in the Senate on September 10, 1992 followed by
Senate Bill No. 1129 which was filed on March 1, 1993. About a year later, this was substituted
by Senate Bill No. 1630 that eventually became the EVAT law, namely, Republic Act No. 7716.

Adverting to the passage of the amendatory VAT bills in the Lower House, it is to be noted that
House Bill No. 11197 which substituted all the prior bills introduced in said House complied with
the required readings, that is, the first reading consisting of the reading of the title and referral to
the appropriate Committee, approval on second reading on November 11, 1993 and on third
reading on November 17, 1993 before being finally transmitted to the Senate. In the Senate, its
identity was preserved and its provisions were taken into consideration when the Senate
Committee on Ways and Means submitted Com. Report No. 349 which recommended for
approval "S.B. No. 1630 in substitution of S.B. No. 1129, taking into consideration P.S. Res. No.
734 and H.B. No. 11197." At this stage, the subject bill may be considered to have passed first
reading in the Senate with the submission of said Committee Report No. 349 by the Senate
Committee on Ways and Means to which it had been referred earlier. What remained, therefore,
was no longer House Bill No. 11197 but Senate Bill No. 1630. Thence, the Senate, instead of
transmitting the bill to the Lower House for its concurrence and amendments, if any, took a
"shortcut," bypassed the Lower House and instead, approved Senate Bill No. 1630 on both
second and third readings on the same day, March 24, 1994.

The first irregularity, that is, the failure to return Senate Bill No. 1630 to the Lower House for its
approval is fatal inasmuch as the other chamber of legislature was not afforded the opportunity
to deliberate and make known its views. It is no idle dictum that no less than the Constitution
ordains: "The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives . . ." 33 (Emphasis supplied)

It is to be pointed out too, that inasmuch as Senate Bill No. 1630 which had "taken into
consideration" House Bill No. 11197 was not returned to the Lower House for deliberation, the
latter Chamber had no opportunity at all to express its views thereon or to introduce any
amendment. The customary practice is, after the Senate has considered the Lower House Bill, it
returns the same to the House of origin with its amendments. In the event that there may be any
differences between the two, the same shall then be referred to a Conference Committee
composed of members from both Chambers which shall then proceed to reconcile said
differences.

In the instant case, the Senate transmitted to the Lower House on March 24, 1994, a letter
informing the latter that it had "passed S. No. 1630
entitled . . . (and) in view of the disagreeing provisions of said bill and House Bill No. 11197,
entitled . . . the Senate requests a conference . . ." This, in spite of the fact that Com. Report No.
349 of the Senate Committee on Ways and Means had already recommended for approval on
February 7, 1994 "S.B. No. 1630 . . . taking into consideration H.B. No. 11197." Clearly, the
Conference Committee could only have acted upon Senate Bill No. 1630, for House Bill No.
11197 had already been fused into the former.

At the oral hearing of July 7, 1994, petitioner in G.R. No. 115455 admitted, in response to this
writer's query, that he had attempted to rectify some of the perceived irregularities by presenting
a motion in the Senate to recall the bill from the Conference Committee so that it could revert to
the period of amendment, but he was outvoted, in fact "slaughtered." 34

In accordance with the Rules of the House of Representatives and the Senate, Republic Act No.
7716 was duly authenticated after it was signed by the President of the Senate and the Speaker
of the House of Representatives followed by the certifications of the Secretary of the Senate
and the Acting Secretary General of the House of Representatives. 35 With the signature of
President Fidel V. Ramos under the words "Approved: 5 May 1994," it was finally promulgated.

Its legislative journey ended, Republic Act No. 7716 attained the status of an enrolled bill which
is defined as one "which has been duly introduced, finally passed by both houses, signed by the
proper officers of each, approved by the governor (or president) and filed by the secretary of
state." 36

Stated differently:

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 is delivered 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, its authentication as a bill that 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 the official attestations of the
Speaker of the House of Representatives, of the President of the Senate, and of
the President of the United 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 having
passed Congress, all bills authenticated in the manner stated; leaving the courts
to determine, when the question properly arises, whether the Act, so
authenticated, is in conformity with the Constitution. 37

The enrolled bill assumes importance when there is some variance between what actually
transpired in the halls of Congress, as reflected in its journals, and as shown in the text of the
law as finally enacted. But suppose the journals of either or both Houses fail to disclose that the
law was passed in accordance with what was certified to by their respective presiding officers
and the President. Or that certain constitutional requirements regarding its passage were not
observed, as in the instant case. Which shall prevail: the journal or the enrolled bill?

A word on the journal.

The journal is the official record of the acts of a legislative body. It should be a
true record of the proceedings arranged in chronological order. It should be a
record of what is done rather than what is said. The journal should be a clear,
concise, unembellished statement of all proposals made and all actions taken
complying with all requirements of constitutions, statutes, charters or rules
concerning what is to be recorded and how it is to be recorded. 38

Article VI, Section 16 (4) of the Constitution ordains:

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

Each House shall also keep a Record of its proceedings." (Emphasis supplied)

The rationale behind the above provision and of the "journal entry rule" is as follows:

It is apparent that the object of this provision is to make the legislature show what
it has done, leaving nothing whatever to implication. And, when the legislature
says what it has done, with regard to the passage of any bill, it negatives the idea
that it has done anything else in regard thereto. Silence proves nothing where
one is commanded to speak . . . . Our constitution commands certain things to be
done in regard to the passage of a bill, and says that no bill shall become a law
unless these things are done. It seems a travesty upon our supreme law to say
that it guaranties to the people the right to have their laws made in this manner
only, and that there is no way of enforcing this right, or for the court to say that
 this is law when the constitution says it is not law. There is one safe course which
is in harmony with the constitution, and that is to adhere to the rule that the
legislature must show, as commanded by the constitution, that it has done
everything required by the constitution to be done in the serious and important
matter of making laws. This is the rule of evidence provided by the constitution. It
is not presumptuous in the courts, nor disrespectful to the legislature, to judge
the acts of the legislature by its own evidence. 39

Confronted with a discrepancy between the journal proceedings and the law as duly enacted,
courts have indulged in different theories. The "enrolled bill" and "journal entry" rules, being
rooted deep in the Parliamentary practices of England where there is no written constitution,
and then transplanted to the United States, it may be instructive to examine which rule prevails
in the latter country through which, by a process of legislative osmosis, we adopted them in turn.

There seems to be three distinct and different rules as applicable to the enrolled
bill recognized by the various courts of this country. The first of these rules
appears to be that the enrolled bill is the ultimate proof and exclusive and
conclusive evidence that the bill passed the legislature in accordance with the
provisions of the Constitution. Such has been the holding in California, Georgia,
Kentucky, Texas, Washington, New Mexico, Mississippi, Indiana, South Dakota,
and may be some others.

The second of the rules seems to be that the enrolled bill is a verity and resort
cannot be had to the journals of the Legislature to show that the constitutional
mandates were not complied with by the Legislature, except as to those
provisions of the Constitution, compliance with which is expressly required to be
shown on the journal. This rule has been adopted in South Carolina, Montana,
Oklahoma, Utah, Ohio, New Jersey, United States Supreme Court, and others.

The third of the rules seems to be that the enrolled bill raises only a prima
facie presumption that the mandatory provisions of the Constitution have been
complied with and that resort may be had to the journals to refute that
presumption, and if the constitutional provision is one, compliance with which is
expressly required by the Constitution to be shown on the journals, then the mere
silence of the journals to show a compliance therewith will refute the
presumption. This rule has been adopted in Illinois, Florida, Kansas, Louisiana,
Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona, Oregon, New
Jersey, Colorado, and others. 40

In the 1980 case of D & W Auto Supply v. Department of Revenue, the Supreme Court of
Kentucky which had subscribed in the past to the first of the three theories, made the
pronouncement that it had shifted its stand and would henceforth adopt the third. It justified its
changed stance, thus:

We believe that a more reasonable rule is the one which Professor Sutherland
describes as the "extrinsic evidence" rule . . . . Under this approach there is
a prima facie presumption that an enrolled bill is valid, but such presumption may
be overcome by clear satisfactory and convincing evidence establishing that
constitutional requirements have not been met. 41
What rule, if any, has been adopted in this jurisdiction?

Advocates of the "journal entry rule" cite the 1916 decision in U.S. v. Pons 42 where this Court
placed reliance on the legislative journals to determine whether Act No. 2381 was passed on
February 28, 1914 which is what appears in the Journal, or on March 1, 1914 which was closer
to the truth. The confusion was caused by the adjournment sine die at midnight of February 28,
1914 of the Philippine Commission.

A close examination of the decision reveals that the Court did not apply the "journal entry
rule" vis-a-vis the "enrolled bill rule" but the former as against what are "behind the legislative
journals."

Passing over the question of whether the printed Act (No. 2381), published by
authority of law, is conclusive evidence as to the date when it was passed, we
will inquire whether the courts may go behind the legislative journals for the
purpose of determining the date of adjournment when such journals are clear
and explicit. 43

It is to be noted from the above that the Court "passed over" the probative value to be accorded
to the enrolled bill.

Opting for the journals, the Court proceeded to explain:

From their very nature and object, the records of the Legislature are as important
as those of the judiciary, and to inquire into the veracity of the journals of the
Philippine Legislature, when they are, as we have said clear and explicit, would
be to violate both the letter and the spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate
powers and functions of the Legislature. 44

Following the courts in the United States since the Constitution of the Philippine Government is
modeled after that of the Federal Government, the Court did not hesitate to follow the courts in
said country, i.e., to consider the journals decisive of the point at issue. Thus: "The journals say
that the Legislature adjourned at 12 midnight on February 28, 1914. This settles the question
and the court did not err in declining to go behind these journals." 45

The Court made a categorical stand for the "enrolled bill rule" for the first time in the 1947 case
of Mabanag v. Lopez Vito 46 where it held that an enrolled bill imports absolute verity and is
binding on the courts. This Court held itself bound by an authenticated resolution, despite the
fact that the vote of three-fourths of the Members of the Congress (as required by the
Constitution to approve proposals for constitutional amendments) was not actually obtained on
account of the suspension of some members of the House of Representatives and the Senate.
In this connection, the Court invoked the "enrolled bill rule" in this wise: "If a political question
conclusively binds the judges out of respect to the political departments, a duly certified law or
resolution also binds the judges under the 'enrolled bill rule' born of that respect." 47

Mindful that the U.S. Supreme Court is on the side of those who favor the rule and for no other
reason than that it conforms to the expressed policy of our law making body (i.e., Sec. 313 of
the old Code of Civil Procedure, as amended by Act No. 2210), the Court said that "duly
certified copies shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof." Without pulling the legal underpinnings from U.S. v. Pons, it justified its
position by saying that if the Court at the time looked into the journals, "in all probability, those
were the documents offered in evidence" and that "even if both the journals and authenticated
copy of the Act had been presented, the disposal of the issue by the Court on the basis of the
journals does not imply rejection of the enrolled theory; for as already stated, the due enactment
of a law may be proved in either of the two ways specified in Section 313 of Act No. 190 as
amended." 48 Three Justices voiced their dissent from the majority decision.

Again, the Court made its position plain in the 1963 case of Casco Philippine Chemical Co., Inc.
v. Gimenez 49 when a unanimous Court ruled that: "The enrolled bill is conclusive upon the
courts as regards the tenor of the measure passed by Congress and approved by the
President. If there has been any mistake in the printing of a bill before it was certified by the
officers of Congress and approved by the Executive, the remedy is by amendment or curative
legislation not by judicial decree." According to Webster's New 20th Century Dictionary, 2nd ed.,
1983, the word "tenor" means, among others, "the general drift of something spoken or written;
intent, purport, substance."

Thus, the Court upheld the respondent Auditor General's interpretation that Republic Act No.
2609 really exempted from the margin fee on foreign exchange transactions "urea
formaldehyde" as found in the law and not "urea and formaldehyde" which petitioner insisted
were the words contained in the bill and were so intended by Congress.

In 1969, the Court similarly placed the weight of its authority behind the conclusiveness of the
enrolled bill. In denying the motion for reconsideration, the Court ruled in Morales v. Subido that
"the enrolled Act in the office of the legislative secretary of the President of the Philippines
shows that Section 10 is exactly as it is in the statute as officially published in slip form by the
Bureau of Printing . . . Expressed elsewise, this is a matter worthy of the attention not of an
Oliver Wendell Holmes but of a Sherlock Holmes." 50 The alleged omission of a phrase in the
final Act was made, not at any stage of the legislative proceedings, but only in the course of the
engrossment of the bill, more specifically in the proofreading thereof.

But the Court did include a caveat that qualified the absoluteness of the "enrolled bill" rule
stating:

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 (Art. VI, secs. 10 [4], 20 [1], and
21 [1]) expressly requires must be entered on the journal of each house. To what
extent the validity of a legislative act may be affected by a failure to have such
matters entered on the journal, is a question which we do not now decide (Cf.
e.g., Wilkes Country Comm'rs. v. Coler, 180 U.S. 506 [1900]). All we hold is that
with respect to matters not expressly required to be entered on the journal, the
enrolled bill prevails in the event of any discrepancy. 51

More recently, in the 1993 case of Philippine Judges Association v. Prado, 52 this Court, in ruling
on the unconstitutionality of Section 35 of Republic Act No. 7354 withdrawing the franking
privilege from the entire hierarchy of courts, did not so much adhere to the enrolled bill rule
alone as to both "enrolled bill and legislative journals." Through Mr. Justice Isagani A. Cruz, we
stated: "Both the enrolled bill and the legislative journals certify that the measure was duly
enacted, i.e., in accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by
such official assurances from a coordinate department of the government, to which we owe, at
the very least, a becoming courtesy."

Aware of the shifting sands on which the validity and continuing relevance of the "enrolled bill"
theory rests, I have taken pains to trace the history of its applicability in this jurisdiction, as
influenced in varying degrees by different Federal rulings.

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

Certainly, "courts cannot claim greater ability to judge procedural legitimacy, since constitutional
rules on legislative procedure are easily mastered. Procedural disputes are over facts —
whether or not the bill had enough votes, or three readings, or whatever — not over the
meaning of the constitution. Legislators, as eyewitnesses, are in a better position than a court to
rule on the facts. The argument is also made that legislatures would be offended if courts
examined legislative procedure. 53

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

This issue I wish to address forthwith.

EXTENT OF THE POWER OF THE BICAMERAL CONFERENCE COMMITTEE

One of the issues raised in these petitions, especially in G.R. Nos. 115781, 115543 and
115754, respectively, is whether or not —

Congress violated Section 26, par. 2, Article VI (of the 1987 Constitution) when it
approved the Bicameral Conference Committee Report which embodied, in
violation of Rule XII of the Rules of the Senate, a radically altered tax measure
containing provisions not reported out or discussed in either House as well as
provisions on which there was no disagreement between the House and the
Senate and, worse, provisions contrary to what the House and the Senate had
approved after three separate readings. 54

and

By adding or deleting provisions, when there was no conflicting provisions

between the House and Senate versions, the BICAM acted in excess of its
jurisdiction or with such grave abuse of discretion as to amount to loss of
jurisdiction. . . . In adding to the bill and thus subjecting to VAT, real properties,
 media and cooperatives despite the contrary decision of both Houses, the
BICAM exceeded its jurisdiction or acted with such abuse of discretion as to
amount to loss of jurisdiction. . . . 55

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 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 the Government." We are also guided by the principle that a
court may interfere with the internal procedures of its coordinate branch only to uphold the
Constitution. 56

A conference committee has been defined:

. . . unlike the joint committee is two committees, one appointed by each house. It
is normally appointed for a specific bill and its function is to gain accord between
the two houses either by the recession of one house from its bill or its
amendments or by the further amendment of the existing legislation or by the
substitution of an entirely new bill. Obviously the conference committee is always
a special committee and normally includes the member who introduced the bill
and the chairman of the committee which considered it together with such other
representatives of the house as seem expedient. (Horack, Cases and Materials
on Legislation [1940] 220. See also Zinn, Conference Procedure in Congress, 38
ABAJ 864 [1952]; Steiner, The Congressional Conference Committee [U of III.
Press,
1951]). 57

From the foregoing definition, it is clear that a bicameral conference committee is a creature, not
of the Constitution, but of the legislative body under its power to determine rules of its
proceedings under Article VI, Sec. 16 (3) of the Constitution. Thus, it draws its life and vitality
from the rules governing its creation. The why, when, how and wherefore of its operations, in
other words, the parameters within which it is to function, are to be found in Section 26, Rule XII
of the Rules of the Senate and Section 85 of the Rules of the House of Representatives,
respectively, which provide:

Rule XII, Rules of the Senate

Sec. 26. In the event that the Senate does not agree with the House of
Representatives on the provision of any bill or joint resolution, the differences
shall be settled by a conference committee of both Houses which shall meet
within ten days after their composition.

The President shall designate the members of the conference committee in

accordance with subparagraph (c), Section 8 of Rule III.

Each Conference Committee Report shall contain a detailed and sufficiently

explicit statement of the changes in or amendments to the subject measure, and
shall be signed by the conferees.
 The consideration of such report shall not be in order unless the report has been
filed with the Secretary of the Senate and copies thereof have been distributed to
the Members.

Rules of the House of Representatives

Sec. 85. Conference Committee Reports. — In the event that the House does not
agree with the Senate on the amendments to any bill or joint resolution, the
differences may be settled by conference committee of both Chambers.

The consideration of conference committee reports shall always be in order,

except when the journal is being read, while the roll is being called or the House
is dividing on any question. Each of the pages of such reports shall contain a
detailed, sufficiently explicit statement of the changes in or amendments to the
subject measure.

The consideration of such report shall not be in order unless copies thereof are
distributed to the Members: Provided, That in the last fifteen days of each
session period it shall be deemed sufficient that three copies of the report, signed
as above provided, are deposited in the office of the Secretary General.

Under these Rules, a bicameral conference committee comes into being only when there
are disagreements and differences between the Senate and the House with regard to certain
provisions of a particular legislative act which have to be reconciled.

Jefferson's Manual, which, according to Section 112, Rule XLIX of the Senate Rules,
supplements it, states that a conference committee is usually called "on the occasion of
amendments between the Houses" and "in all cases of difference of opinion between the two
House on matters pending between
them." 58 It further states:

The managers of a conference must confine themselves to the differences committed to them,
and may not include subjects not within the disagreements, even though germane to a question
in issue. But they may perfect amendments committed to them if they do not in so doing go
beyond the differences. . . . Managers may not change the text to which both Houses have
agreed. 59 (Emphasis supplied.)

Mason's Manual of Legislative Procedures which is also considered as controlling authority for

any situation not covered by a specific legislative
rule, 60 states that either House may "request a conference with the other on any matter of
difference or dispute between them" and that in such a request, "the subject of the conference
should always be stated." 61

In the Philippines, as in the United States, the Conference Committee exercises such a wide
range of authority that they virtually constitute a third House in the Legislature. As admitted by
the Solicitor General, "It was the practice in past Congresses for Conference Committees to
insert in bills approved by the two Houses new provisions that were not originally contemplated
by them." 62
In Legislative Procedure, Robert Luce gives a graphic description of the milieu and the
circumstances which have conspired to transform an initially innocuous mechanism designed to
facilitate action into an all-powerful Frankenstein that brooks no challenge to its authority even
from its own members.

Their power lies chiefly in the fact that reports of conference committees must be
accepted without amendment or else rejected in toto. The impulse is to get done
with the matters and so the motion to accept has undue advantage, for some
members are sure to prefer swallowing unpalatable provisions rather than
prolong controversy. This is the more likely if the report comes in the rush of
business toward the end of a session, when to seek further conference might
result in the loss of the measure altogether. At any time in the session there is
some risk of such a result following the rejection of a conference report, for it may
not be possible to secure a second conference, or delay may give opposition to
the main proposal chance to develop more strength.

xxx xxx xxx

Entangled in a network of rule and custom, the Representative who resents and
would resist this theft of his rights, finds himself helpless. Rarely can he vote,
rarely can he voice his mind, in the matter of any fraction of the bill. Usually he
cannot even record himself as protesting against some one feature while
accepting the measure as whole. Worst of all, he cannot by argument or
suggested change, try to improve what the other branch has done.

This means more than the subversion of individual rights. It means to a degree
the abandonment of whatever advantage the bicameral system may have. By so
much it in effect transfers the lawmaking power to a small group of members
who work out in private a decision that almost always prevails. What is worse,
these men are not chosen in a way to ensure the wisest choice. It has become
the practice to name as conferees the ranking members of the committee, so that
the accident of seniority determines. Exceptions are made, but in general it is not
a question of who are most competent to serve. Chance governs, sometimes
giving way to favor, rarely to merit.

xxx xxx xxx

Speaking broadly, the system of legislating by conference committee is

unscientific and therefore defective. Usually it forfeits the benefit of scrutiny and
judgment by all the wisdom available. Uncontrolled, it is inferior to that process
by which every amendment is secured independent discussion and
vote. . . . 63 (Emphasis supplied)

Not surprisingly has it been said: "Conference Committee action is the most undemocratic
procedure in the legislative process; it is an appropriate target for legislative critics." 64

In the case at bench, petitioners insist that the Conference Committee to which Senate Bill No.
1630 and House Bill No. 11197 were referred for the purpose of harmonizing their differences,
overreached themselves in not confining their "reconciliation" function to those areas of
disagreement in the two bills but actually making "surreptitious insertions" and deletions which
amounted to a grave abuse of discretion.

At this point, it becomes imperative to focus on the errant provisions which found their way into
Republic Act No. 7716. Below is a breakdown to facilitate understanding the grounds for
petitioners' objections:

INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE (BICAM) TO SENATE

BILL (SB) NO. 1630 AND HOUSE BILL (HB) NO. 11197

1. Sec. 99 of the National Internal Revenue Code (NIRC)

(1) Under the HB, this section includes any person who, in the course of trade or business,
sells, barters or exchanges goods OR PROPERTIES and any person who LEASES
PERSONAL PROPERTIES.

(2) The SB completely changed the said section and defined a number of words and phrases.
Also, Section 99-A was added which included one who sells, exchanges, barters PROPERTIES
and one who imports PROPERTIES.

(3) The BICAM version makes LESSORS of goods OR PROPERTIES and importers of goods
LIABLE to VAT (subject of petition in G.R. No. 115754).

2. Section 100 (VAT on Sale of Goods)

The term "goods" or "properties" includes the following, which were not found in either the HB or
the SB:

— In addition to radio and television time; SATTELITE TRANSMISSION AND

CABLE TELEVISION TIME.

— The term "Other similar properties" was deleted, which was present in the HB
and the SB.

— Real properties held primarily for sale to customers or held for lease in the
ordinary course or business were included, which was neither in the HB nor the
SB (subject of petition in G.R. No. 115754).

3. Section 102

On what are included in the term "sale or exchange of services," as to make them subject to
VAT, the BICAM included/inserted the following (not found in either House or Senate Bills):

1. Services of lessors of property, whether personal or real (subject of petition in

G.R. No. 115754);

2. Warehousing services;

3. Keepers of resthouses, pension houses, inns, resorts;

 4. Common carriers by land, air and sea;

5. Services of franchise grantees of telephone and telegraph;

6. Radio and television broadcasting;

7. All other franchise grantees except those under Section 117 of this Code
(subject of petition in G.R. No. 115852);

8. Services of surety, fidelity, indemnity, and bonding companies;

9. Also inserted by the BICAM (on page 8 thereof) is the lease or use of or the
right to use of satellite transmission and cable television time.

4. Section 103 (Exempt Transactions)

The BICAM deleted subsection (f) in its entirety, despite its inclusion in both the House and
Senate Bills. Therefore, under Republic Act No. 7716, the "printing, publication, importation or
sale of books and any newspaper, magazine, review, or bulletin which appears at regular
intervals with fixed prices for subscription and sale and which is not devoted principally to the
publication of advertisements" is subject to VAT (subject of petition in G.R. No. 115931 and
G.R. No. 115544).

The HB and SB did not touch Subsection (g) but it was amended by the BICAM by changing the
word TEN to FIVE. Thus, importation of vessels with tonnage of more than five thousand tons is
VAT exempt.

Subsection L, which was identical in the HB and the SB that stated that medical, dental, hospital
and veterinary services were exempted from the VAT was amended by the BICAM by adding
the qualifying phrase: EXCEPT THOSE RENDERED BY PROFESSIONALS, thus subjecting
doctors, dentists and veterinarians to the VAT.

Subsection U which exempts from VAT "transactions which are exempt under special laws,"
was amended by the BICAM by adding the phrase: EXCEPT THOSE GRANTED UNDER PD
Nos. 66, 529, 972, 1491, AND 1590, AND NON-ELECTRIC COOPERATIVES UNDER RA 6938
(subject of petition in G.R. No. 115873), not found in either the HB or the SB, resulting in the
inclusion of all cooperatives to the VAT, except non-electric cooperatives.

The sale of real properties was included in the exempt transactions under the House Bill, but the
BICAM qualified this with the provision:

(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO

CUSTOMERS OR HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE
OR BUSINESS OR REAL PROPERTY UTILIZED FOR LOW-COST AND
SOCIALIZED HOUSING AS DEFINED BY RA NO. 7279 OTHERWISE KNOWN
AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992 AND OTHER
RELATED LAWS. (subject of petition in G.R. No. 115754)
The BICAM also exempted the sale of properties, the receipts of which are not less than
P480,000.00 or more than P720,000.00. Under the SB, no amount was given, but in the HB it
was stated that receipts from the sale of properties not less than P350,000.00 nor more than
P600,000.00 were exempt.

It did not include, as VAT exempt, the sale or transfer of securities, as defined in the Revised
Securities Act (BP 178) which was contained in both Senate and House Bills.

5. Section 104

Not included in the HB or the SB is the phrase "INCLUDING PACKAGING MATERIALS" which
was inserted by the BICAM in Section 104 (A) (1) (B), thus excluding from creditable input tax
packaging materials and the phrase "ON WHICH A VALUE-ADDED TAX HAS BEEN
ACTUALLY PAID" in Section 104 (A) (2).

6. Section 107

Both House and Senate Bills provide for the payment of P500.00 VAT registration fee but this
was increased by BICAM to P1,000.00.

7. Section 112

Regarding a person whose sales or receipts are exempt under Section 103 (w), the BICAM
inserted the phrase: "THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR
PERCENT (4%) TWO YEARS THEREAFTER," although the SB and the HB provide only "three
percent of his gross quarterly sales."

8. Section 115

The BICAM adopted the HB version which subjects common carriers by land, air or water for
the transport of passengers to 3% of their gross quarterly sales, which is not found in the SB.

9. Section 117

The BICAM amended this section by subjecting franchises on electric, gas and water utilities to
a tax of two percent (2%) on gross receipts
derived . . ., although neither the HB nor the SB has a similar provision.

10. Section 17 (d)

(a) The BICAM defers for only 2 years the VAT on services of actors and actresses, although
the SB defers it for 3 years.

(b) The BICAM uses the word "EXCLUDE" in the section on deferment of VAT collection on
certain goods and services. The HB does not contain any counterpart provision and SB only
allows deferment for no longer than 3 years.
11. Section 18 on the Tax Administration Development Fund is an entirely new provision not
contained in the House/Senate Bills. This fund is supposed to ensure effective implementation
of Republic Act No. 7716.

12. Section 19

No period within which to promulgate the implementing rules and regulations is found in the HB
or the SB but BICAM provided "within 90 days" which found its way in Republic Act No. 7716.

Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral
Conference Committee (henceforth to be referred to as BICAM) exceeded the power and
authority granted in the Rules of its creation. Both Senate and House Rules limit the task of the
Conference Committee in almost identical language to the settlement of differences in the
provisions or amendments to any bill or joint resolution. If it means anything at all, it is that there
are provisions in subject bill, to start with, which differ and, therefore, need reconciliation.
Nowhere in the Rules is it authorized to initiate or propose completely new matter. Although
under certain rules on legislative procedure, like those in Jefferson's Manual, a conference
committee may introduce germane matters in a particular bill, such matters should be
circumscribed by the committee's sole authority and function to reconcile differences.

Parenthetically, in the Senate and in the House, a matter is "germane" to a particular bill if there
is a common tie between said matter and the provisions which tend to promote the object and
purpose of the bill it seeks to amend. If it introduces a new subject matter not within the purview
of the bill, then it is not "germane" to the bill. 65 The test is whether or not the change
represented an amendment or extension of the basic purpose of the original, or the introduction
of an entirely new and different subject matter. 66

In the BICAM, however, the germane subject matter must be within the ambit of the
disagreement between the two Houses. If the "germane" subject is not covered by the
disagreement but it is reflected in the final version of the bill as reported by the Conference
Committee or, if what appears to be a "germane" matter in the sense that it is "relevant or
closely allied" 67 with the purpose of the bill, was not the subject of a disagreement between the
Senate and the House, it should be deemed an extraneous matter or even a "rider" which
should never be considered legally passed for not having undergone the three-day reading
requirement. Insertion of new matter on the part of the BICAM is, therefore, an ultra vires act
which makes the same void.

The determination of what is "germane" and what is not may appear to be a difficult task but the
Congress, having been confronted with the problem before, resolved it in accordance with the
rules. In that case, the Congress approved a Conference Committee's insertion of new
provisions that were not contemplated in any of the provisions in question between the Houses
simply because of the provision in Jefferson's Manual that conferees may report matters "which
are germane modifications of subjects in disagreement between the Houses and the
committee. 68 In other words, the matter was germane to the points of disagreement between
the House and the Senate.

As regards inserted amendments in the BICAM, therefore, the task of determining what is

germane to a bill is simplified, thus: If the amendments are not circumscribed by the subjects of
disagreement between the two Houses, then they are not germane to the purpose of the bill.
In the instant case before us, the insertions and deletions made do not merely spell an effort at
settling conflicting provisions but have materially altered the bill, thus giving rise to the instant
petitions on the part of those who were caught unawares by the legislative legerdemain that
took place. Going by the definition of the word "amendment" in Black's Law Dictionary, 5th Ed.,
1979, which means "to change or modify for the better; to alter by modification, deletion, or
addition," said insertions and deletions constitute amendments. Consequently, these violated
Article VI, Section 26 (2) which provides inter alia: "Upon the last reading of a bill, no
amendment thereto shall be
allowed . . ." This proscription is intended to subject all bills and their amendments to intensive
deliberation by the legislators and the ample ventilation of issues to afford the public an
opportunity to express their opinions or objections issues to afford the public an opportunity to
express their opinions or objections thereon. The same rationale underlies the three-reading
requirement to the end that no surprises may be sprung on an unsuspecting citizenry.

Provisions of the "now you see it, now you don't" variety, meaning those which were either in
the House and/or Senate versions but simply disappeared or were "bracketed out" of existence
in the BICAM Report, were eventually incorporated in Republic Act No. 7716. Worse, some
goods, properties or services which were not covered by the two versions and, therefore, were
never intended to be so covered, suddenly found their way into the same Report. No advance
notice of such insertions prepared the rest of the legislators, much less the public who could be
adversely affected, so that they could be given the opportunity to express their views thereon.
Well has the final BICAM report been described, therefore, as an instance of "taxation without
representation."

That the conferees or delegates in the BICAM representing the two Chambers could not
possibly be charged with bad faith or sinister motives or, at the very least, unseemly behavior, is
of no moment. The stark fact is that items not previously subjected to the VAT now fell under its
coverage without interested sectors or parties having been afforded the opportunity to be heard
thereon. This is not to say that the Conference Committee Report should have undergone the
three readings required in Article VI, Section 26 (2), for this clearly refers only to bills which,
after having been initially filed in either House, negotiated the labyrinthine passage therein until
its approval. The composition of the BICAM including as it usually does, the Chairman of the
appropriate Committee, the sponsor of the bill and other interested members ensures an
informed discussion, at least with respect to the disagreeing provisions. The same does not
obtain as regards completely new matter which suddenly spring on the legislative horizon.

It has been pointed out that such extraneous matters notwithstanding, all Congressman and
Senators were given the opportunity to approve or turn down the Committee Report in toto, thus
"curing" whatever defect or irregularity it bore.

Earlier in this opinion, I explained that the source of the acknowledged power of this ad
hoc committee stems from the precise fact that, the meetings, being scheduled "take it or leave
it" basis. It has not been uncommon for legislators who, for one reason or another have been
frustrated in their attempt to pass a pet bill in their own chamber, to work for its passage in the
BICAM where it may enjoy a more hospitable reception and faster approval. In the instant case,
had there been full, open and unfettered discussion on the bills during the Committee sessions,
there would not have been as much vociferous objections on this score. Unfortunately, however,
the Committee held two of the five sessions behind closed doors, sans stenographers, record-
takers and interested observers. To that extent, the proceedings were shrouded in mystery and
the public's right to information on matters of public concern as enshrined in Article III, Section
7 69 and the government's policy of transparency in transactions involving public interest in
Article II, Section 28 of the
Constitution 70 are undermined.

Moreover, that which is void ab initio such as the objectionable provisions in the Conference
Committee Report, cannot be "cured" or ratified. For all intents and purposes, these never
existed. Quae ab initio non valent, ex post facto convalescere non possunt. Things that are
invalid from the beginning are not made valid by a subsequent act.

Should this argument be unacceptable, the "enrolled bill" doctrine, in turn, is invoked to support
the proposition that the certification by the presiding officers of Congress, together with the
signature of the President, bars further judicial inquiry into the validity of the law. I reiterate my
submission that the "enrolled bill ruling" may be applicable but only with respect to questions
pertaining to the procedural enactment, engrossment, printing, the insertion or deletion of a
word or phrase here and there, but would draw a dividing line with respect to substantial
substantive changes, such as those introduced by the BICAM herein.

We have before us then the spectacle of a body created by the two Houses of Congress for the
very limited purpose of settling disagreements in provisions between bills emanating therefrom,
exercising the plenary legislative powers of the parent chambers but holding itself exempt from
the mandatory constitutional requirements that are the hallmarks of legislation under the aegis
of a democratic political system. From the initial filing, through the three readings which entail
detailed debates and discussions in Committee and plenary sessions, and on to the transmittal
to the other House in a repetition of the entire process to ensure exhaustive deliberations — all
these have been skipped over. In the proverbial twinkling of an eye, provisions that probably
may not have seen the light of day had they but run their full course through the legislative mill,
sprang into existence and emerged full-blown laws.

Yet our Constitution vests the legislative power in "the Congress of the Philippines which shall
consist of a Senate and a House of
Representatives . . ." 71 and not in any special, standing or super committee of its own creation,
no matter that these have been described, accurately enough, as "the eye, the ear, the hand,
and very often the brain of the house."

Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does
not warrant its being legitimized and perpetuated any longer. Consuetudo, contra rationem
introducta, potius usurpatio quam consuetudo appellari debet. A custom against reason is rather
an usurpation. In the hierarchy of sources of legislative procedure, constitutional rules, statutory
provisions and adopted rules (as for example, the Senate and House Rules), rank highest,
certainly much ahead of customs and usages.

Secondly, is this Court to assume the role of passive spectator or indulgent third party, timorous
about exercising its power or more importantly, performing its duty, of making a judicial
determination on the issue of whether there has been grave abuse of discretion by the other
branches or instrumentalities of government, where the same is properly invoked? The time is
past when the Court was not loathe to raise the bogeyman of the political question to avert a
head-on collision with either the Executive or Legislative Departments. Even the separation of
powers doctrine was burnished to a bright sheen as often as it was invoked to keep the judiciary
within bounds. No longer does this condition obtain. Article VIII, Section 2 of the Constitution
partly quoted in this paragraph has broadened the scope of judicial inquiry. This Court can now
safely fulfill its mandate of delimiting the powers of co-equal departments like the Congress, its
officers or its committees which may have no compunctions about exercising legislative powers
in full.

Thirdly, dare we close our eyes to the presumptuous assumption by a runaway committee of its
progenitor's legislative powers in derogation of the rights of the people, in the process,
subverting the democratic principles we all are sworn to uphold, when a proper case is made
out for our intervention? The answers to the above queries are self-evident.

I call to mind this exhortation: "We are sworn to see that violations of the constitution — by any
person, corporation, state agency or branch of government — are brought to light and
corrected. To countenance an artificial rule of law that silences our voices when confronted with
violations of our Constitution is not acceptable to this Court." 72

I am not unaware that a rather recent decision of ours brushed aside an argument that a
provision in subject law regarding the withdrawal of the franking privilege from the petitioners
and this Court itself, not having been included in the original version of Senate Bill No. 720 or of
House Bill No. 4200 but only in the Conference Committee Report, was violative of Article VI,
Section 26 (2) of the Constitution. Likewise, that said Section 35, never having been a subject of
disagreement between both Houses, could not have been validly added as an amendment
before the Conference Committee.

The majority opinion in said case explained:

While it is true that a conference committee is the mechanism for compromising differences
between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader
function is described thus:

A conference committee may deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where
the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be
inserted into the conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate. These excursions
occur even where the rules impose strict limitations on conference committee
jurisdiction. This is symptomatic of the authoritarian power of conference
committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.
81). 73 (Emphasis supplied)

At the risk of being repetitious, I wish to point out that the general rule, as quoted above, is:
"Even where the conference committee is not by rule limited in its jurisdiction, legislative custom
severely limits the freedom with which new subject matter can be inserted into the conference
bill." What follows, that is, "occasionally a conference committee produces unexpected results,
results beyond its mandate. . ." is the exception. Then it concludes with a declaration that: "This
is symptomatic of the authoritarian power of conference committee." Are we about to reinstall
another institution that smacks of authoritarianism which, after our past experience, has become
anathema to the Filipino people?

The ruling above can hardly be cited in support of the proposition that a provision in a BICAM
report which was not the subject of differences between the House and Senate versions of a bill
cannot be nullified. It submit that such is not authorized in our Basic Law. Moreover, this
decision concerns merely one provision whereas the BICAM Report that culminated in the
EVAT law has a wider scope as it, in fact, expanded the base of the original VAT law by
imposing the tax on several items which were not so covered prior to the EVAT.

One other flaw in most BICAM Reports, not excluding this one under scrutiny, is that, hastily
drawn up, it often fails to conform to the Senate and House Rules requiring no less than a
"detailed" and "sufficiently explicit statement of the changes in or amendments to the subject
measure." The Report of the committee, as may be gleaned from the preceding pages, was no
more than the final version of the bill as "passed" by the BICAM. The amendments or subjects
of dissension, as well as the reconciliation made by the committee, are not even pointed out,
much less explained therein.

It may be argued that legislative rules of procedure may properly be suspended, modified,
revoked or waived at will by the legislators themselves. 74 This principle, however, does not
come into play in interpreting what the record of the proceedings shows was, or was not, done.
It is rather designed to test the validity of legislative action where the record shows a final action
in violation or disregard of legislative rules. 75 Utilizing the Senate and the House Rules as both
guidelines and yardstick, the BICAM here obviously did not adhere to the rule on what the
Report should contain.

Given all these irregularities that have apparently been engrafted into the BICAM system, and
which have been tolerated, if not accorded outright acceptance by everyone involved in or
conversant with, the institution, it may be asked: Why not leave well enough alone?

That these practices have remained unchallenged in the past does not justify our closing our
eyes and turning a deaf ear to them. Writ large is the spectacle of a mechanism ensconced in
the very heart of the people's legislative halls, that now stands indicted with the charge of
arrogating legislative powers unto itself through the use of dubious "shortcuts." Here, for the
people to judge, is the "mother of all shortcuts."

In the petitions at bench, we are confronted with the enactment of a tax law which was designed
to broaden the tax base. It is rote learning for any law student that as an attribute of sovereignty,
the power to tax is "the strongest of all the powers of government." 76 Admittedly, "for all its
plenitude, the power to tax is not unconfined. There are restrictions." 77 Were there none, then
the oft-quoted 1803 dictum of Chief Justice Marshall that "the power to tax involves the power to
destroy" 78 would be a truism. Happily, we can concur with, and the people can find comfort in,
the reassuring words of Mr. Justice Holmes: "The power to tax is not the power to destroy while
this Court sits." 79

Manakanaka, mayroong dumudulog dito sa Kataastaasang Hukuman na may kamangha-

manghang hinaing. Angkop na halimbawa ay ang mga petisyong iniharap ngayon sa amin.

Ang ilan sa kanila ay mga Senador na nais mapawalang bisa ang isang batas ukol sa buwis na
ipinasa mismo nila. Diumano ito ay hindi tumalima sa mga itinatadhana ng Saligang Batas.
Bukod sa rito, tutol sila sa mga bagong talata na isiningit ng "Bicameral Conference Committee"
na nagdagdag ng mga bagong bagay bagay at serbisyo na papatawan ng buwis. Ayon sa
kanila, ginampanan ng komiteng iyan ang gawain na nauukol sa buong Kongreso. Kung kaya't
ang nararapat na mangyari ay ihatol ng Kataastaasang Hukuman na malabis na
pagsasamantala sa sariling pagpapasiya ang ginawa ng Kongreso.
Bagama't bantulot kaming makialam sa isang kapantay na sangay ng Pamahalaan, hindi
naman nararapat na kami ay tumangging gampanan ang tungkulin na iniatas sa amin ng
Saligang Batas. Lalu't-lalo nang ang batas na kinauukulan ay maaaring makapinsala sa
nakararami sa sambayanan.

Sa ganang akin, itong batas na inihaharap sa amin ngayon, ay totoong labag sa Saligang
Batas, samakatuwid ay walang bisa. Nguni't ito ay nauukol lamang sa mga katiwalian na may
kinalaman sa paraan ng pagpapasabatas nito. Hindi namin patakaran ang makialam o
humadlang sa itinakdang gawain ng Saligang Batas sa Pangulo at sa Kongreso. Ang dalawang
sangay na iyan ng Pamahalaan ang higit na maalam ukol sa kung ang anumang panukalang
batas ay nararapat, kanais-nais o magagampanan; kung kaya't hindi kami nararapat na
maghatol o magpapasiya sa mga bagay na iyan. Ang makapapataw ng angkop na lunas sa
larangan na iyan ay ang mismong mga kinatawan ng sambayanan sa Kongreso.

Faced with this challenge of protecting the rights of the people by striking down a law that I
submit is unconstitutional and in the process, checking the wonted excesses of the Bicameral
Conference Committee system, I see in this case a suitable vehicle to discharge the Court's
Constitutional mandate and duty of declaring that there has indeed been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Legislature.

Republic Act No. 7716, being unconstitutional and void, I find no necessity to rule on the
substantive issues as dealt with in the majority opinion as they have been rendered moot and
academic. These issues pertain to the intrinsic merits of the law. It is axiomatic that the wisdom,
desirability and advisability of enacting certain laws lie, not within the province of the Judiciary
but that of the political departments, the Executive and the Legislative. The relief sought by
petitioners from what they perceive to be the harsh and onerous effect of the EVAT on the
people is within their reach. For Congress, of which Senator-petitioners are a part, can furnish
the solution by either repealing or amending the subject law.

For the foregoing reasons, I VOTE to GRANT the petition.

PUNO, J.:

Petitioners plead that we affirm the self-evident proposition that they who make law should not
break the law. There are many evils whose elimination can be trusted to time. The evil of
lawlessness in lawmaking cannot. It must be slain on sight for it subverts the sovereignty of the
people.

First, a fast snapshot of the facts. On November 17, 1993, the House of Representatives
passed on third reading House Bill (H.B.) No. 11197 entitled "An Act Restructuring the Value
Added Tax (VAT) System to Widen its Tax Base and Enhance its Administration, Amending for
These Purposes Sections 99, 100, 102 to 108 and 110 Title V and 236, 237 and 238 of Title IX,
and Repealing Sections 113 and 114 of Title V, all of the National Internal Revenue Code as
Amended." The vote was 114 Yeas and 12 Nays. The next day, November 18, 1993, H.B. No.
11197 was transmitted to the Senate for its concurrence by the Hon. Camilo L. Sabio, Secretary
General of the House of Representatives.
On February 7, 1994, the Senate Committee on Ways and Means submitted Senate Bill (S.B.)
No. 1630, recommending its approval "in substitution of Senate Bill No. 1129 taking into
consideration P.S. Res. No. 734 and House Bill No. 11197." On March 24, 1994, S.B. No. 1630
was approved on second and third readings. On the same day, the Senate, thru Secretary
Edgardo E. Tumangan, requested the House for a conference "in view of the disagreeing
provisions of S.B. No. 1630 and H.B. No. 11197." It designated the following as members of its
Committee: Senators Ernesto F. Herrera, Leticia R. Shahani, Alberto S. Romulo, John H.
Osmeña, Ernesto M. Maceda, Blas F. Ople, Francisco S. Tatad, Rodolfo G. Biazon, and
Wigberto S. Tañada. On the part of the House, the members of the Committee were:
Congressmen Exequiel B. Javier, James L. Chiongbian, Renato V. Diaz, Arnulfo P. Fuentebella,
Mariano M. Tajon, Gregorio Andolong, Thelma Almario, and Catalino Figueroa. After five (5)
meetings, 1 the Bicameral Conference Committee submitted its Report to the Senate and the
House stating:

CONFERENCE COMMITTEE REPORT

The Conference Committee on the disagreeing provisions of House Bill No.

11197, entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107,
108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

and Senate Bill No. 1630 entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 106, 107, 108
AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V, AND 236, 237,
AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114, 116, 119 AND
120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES

having met, after full and free conference, has agreed to recommend and do
hereby recommend to their respective Houses that House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance with the
attached copy of the bill as reconciled and approved by the conferees.

Approved.

The Report was approved by the House on April 27, 1994. The Senate approved it on May 2,
1994. On May 5, 1994, the President signed the bill into law as R.A. No. 7716.

There is no question that the Bicameral Conference Committee did more than reconcile
differences between House Bill No. 11197 and Senate Bill No. 1630. In several instances, it
either added new provisions or deleted provisions already approved in House Bill No. 11197
and Senate Bill No. 1630. These insertions/deletions numbering twenty four (24) are specified in
detail by petitioner Tolentino as follows: 2

SOME SALIENT POINTS ON THE

(AMENDMENTS TO THE VATE LAW [EO 273])
SHOWING ADDITIONS/INSERTIONS MADE BY BICAMERAL
CONFERENCE COMMITTEE TO SB 1630 & HB 11197

I On Sec. 99 of the NIRC

H.B. 11197 amends this section by including, as liable to VAT, any person who in
the course of trade of business, sells, barters, or exchanges goods or
PROPERTIES and any person who LEASES PERSONAL PROPERTIES.

Senate Bill 1630 deleted Sec. 99 to give way for a new Section 99 —
DEFINITION OF TERMS — where eleven (11) terms were defined. A new
Section, Section 99-A was incorporated which included as subject to VAT, one
who sells, exchanges, barters PROPERTIES and one who imports
PROPERTIES.

The BCC version (R.A. 7716) makes LESSORS of goods OR PROPERTIES and
importers of goods LIABLE to VAT.

II On Section 100 (VAT on sale of goods)

A. The H.B., S.B., and the BCC (R.A. 7716) all included sale of PROPERTIES as
subject to VAT.

The term GOODS or PROPERTIES includes the following:

HB (pls. refer SB (pls. refer BCC (RA 7716

to Sec. 2) To Sec. 1(4) (Sec. 2)

1
. Right or the 1. The same 1. The same

privilege to use    

patent, copyright,    

design, or model,    

plan, secret    

formula or process,    

goodwill trademark,    
tradebrand or other    

like property or    

right.    

     

2. Right or the 2. The same 2. The same

privilege to use    

in the Philippines    

of any industrial,    

commercial, or    

scientific equip-    

ment.    

     

3. Right or the 3. The same 3. The same

privilege to use    

motion picture    
films,

films, tapes and    

discs.    

     

4. Radio and 4. The same 4. In addition

Television time   to radio and

    television time the

    following were

    included:
     SATELLITE
TRANSMISSION

    and CABLE

    TELEVISION TIME

     

5. Other Similar 5. The Same 5. 'Other

properties   similar properties'

    was deleted

     

6. - 6. - 6. Real

    properties held

    primarily for sale to

    customers or held

    for lease in the

    ordinary course or

    business

B. The HB and the BCC Bills has each a provision which includes THE SALE OF
GOLD TO BANGKO SENTRAL NG PILIPINAS as falling under the term Export
Sales, hence subject to 0% VAT. The Senate Bill does not contain such provision
(See Section 102-A thereof).

III. On Section 102

This section was amended to include as subject to a 10% VAT the gross receipts
derived from THE SALE OR EXCHANGE OF SERVICES, INCLUDING THE
USE OR LEASE OF PROPERTIES.

The SB, HB, and BCC have the same provisions on this.
However, on what are included in the term SALE OR EXCHANGE OF
SERVICES, the BCC included/inserted the following (not found in either the
House or Senate Bills):

1. Services of lessors of property WHETHER PERSONAL OR

REAL; (See BCC Report/Bill p. 7)

2. WAREHOUSING SERVICES (Ibid.,)

3. Keepers of RESTHOUSES, PENSION HOUSES, INNS,

RESORTS (Ibid.,)

4. Common carriers by LAND, AIR AND SEA (Ibid.,)

5. SERVICES OF FRANCHISE GRANTEES OF TELEPHONE

AND TELEGRAPH;

6. RADIO AND TELEVISION BROADCASTING

7. ALL OTHER FRANCHISE GRANTEES EXCEPT THOSE

UNDER SECTION 117 OF THIS CODE

8. SERVICES OF SURETY, FIDELITY, INDEMNITY, AND

BONDING COMPANIES.

9. Also inserted by the BCC (on page B thereof) is the LEASE OR

USE OF OR THE RIGHT TO USE OF SATTELITE
TRANSMISSION AND CABLE TELEVISION TIME

IV. On Section 103 (Exempt Transactions)

The BCC deleted subsection (f) in its entirety, despite its retention in both the
House and Senate Bills, thus under RA 7716, the "printing, publication,
importation or sale of books and any newspaper, magazine, review, or bulletin
which appears at regular intervals with fixed prices for subscription and sale and
which is not devoted principally to the publication of advertisements" is subject to
VAT.

Subsection (g) was amended by the BCC (both Senate and House Bills did not)
by changing the word TEN to FIVE, thus: "Importation of passenger and/or cargo
vessel of more than five thousand ton to ocean going, including engine and spare
parts of said vessel to be used by the importer himself as operator thereof." In
short, importation of vessels with tonnage of more than 5 thousand is VAT
exempt.

Subsection L, was amended by the BCC by adding the qualifying phrase:

EXCEPT THOSE RENDERED BY PROFESSIONALS.
Subsection U which exempts from VAT "Transactions which are exempt under
special laws", was amended by BCC by adding the phrase: EXCEPT THOSE
GRANTED UNDER PD NOS. 66, 529, 972, 1491, and 1590, and NON-
ELECTRIC COOPERATIVES under RA 6938. This is the reason why
cooperatives are now subject to VAT.

While the SALE OF REAL PROPERTIES was included in the exempt

transactions under the House Bill, the BCC made a qualification by stating:

(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR

SALE TO CUSTOMERS OR HELD FOR LEASE IN THE
ORDINARY COURSE OF TRADE OR BUSINESS OR REAL
PROPERTY UTILIZED FOR LOW-COST AND SOCIALIZED
HOUSING AS DEFINED BY R.A. NO. 7279 OTHERWISE
KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT
OF 1992 AND OTHER RELATED LAWS.

Under the Senate Bill, the sale of real property utilized for low-cost
and socialized housing as defined by RA 7279, is one of the
exempt transactions.

Under the House Bill, also exempt from VAT, is the SALE OF
PROPERTIES OTHER THAN THE TRANSACTIONS
MENTIONED IN THE FOREGOING PARAGRAPHS WITH A
GROSS ANNUAL SALES AND/OR RECEIPTS OF WHICH DOES
NOT EXCEED THE AMOUNT PRESCRIBED IN THE
REGULATIONS TO BE PROMULGATED BY THE SECRETARY
OF FINANCE WHICH SHALL NOT BE LESS THAN P350,000.00
OR HIGHER THAN P600,000.00 . . . Under the Senate Bill, the
amount is P240,000.00. The BCC agreed at the amount of not
less than P480,000.00 or more than P720,000.00 SUBJECT TO
TAX UNDER SEC. 112 OF THIS CODE.

The BCC did not include, as VAT exempt, the sale or transfer of
securities as defined in the Revised Securities Act (BP 178) which
was contained in both Senate and House Bills.

V On Section 104

The phrase INCLUDING PACKAGING MATERIALS was included by the BCC on

Section 104 (A) (1) (B), and the phrase ON WHICH A VALUE-ADDED TAX HAS
BEEN ACTUALLY on Section 104 (A) (2).

These phrases are not contained in either House and Senate Bills.

VI On Section 107

Both House and Senate Bills provide for the payment of P500.00 VAT
registration fee. The BCC provides for P1,000.00 VAT fee.
VII On Section 112

While both the Senate and House Bills provide that a person whose sales or
receipts and are exempt under Section 103[w] of the Code, and who are not VAT
registered shall pay a tax equivalent to THREE (3) PERCENT of his gross
quarterly sales or receipts, the BCC inserted the phrase: THREE PERCENT
UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO
YEARS THEREAFTER.

VIII On Section 115

Sec. 17 of SB 1630 Sec. 12 of House Bill 11197 amends this Section by

clarifying that common carriers by land, air or water FOR THE TRANSPORT OF
PASSENGERS are subject to Percentage Tax equivalent to 3% of their quarterly
gross sales.

The BCC adopted this and the House Bill's provision that the GROSS RECEIPTS
OF COMMON CARRIERS DERIVED FROM THEIR INCOMING AND
OUTGOING FREIGHT SHALL NOT BE SUBJECTED TO THE LOCAL TAXES
IMPOSED UNDER RA 7160. The Senate Bill has no similar provision.

IX On Section 117

This Section has not been touched by either Senate and House Bills. But the
BCC amended it by subjecting franchises on ELECTRIC, GAS and WATER
UTILITIES A TAX OF TWO PERCENT (2%) ON GROSS RECEIPTS DERIVED .
...

X On Section 121

The BCC adopted the Senate Bills' amendment to this section by subjecting to
5% premium tax on life insurance business.

The House Bill does not contain this provision.

XI Others

A) The House Bill does not contain any provision on the deferment of VAT
collection on Certain Goods and Services as does the Senate Bill (Section 19,
SB 1630). But although the Senate Bill authorizes the deferment on certain
goods and services for no longer than 3 years, there is no specific provision that
authorizes the President to EXCLUDE from VAT any of these. The BCC uses the
word EXCLUDE.

B) Moreover, the Senate Bill defers the VAT on services of actors and actresses
etc. for 3 years but the BCC defers it for only 2 years.

C) Section 18 of the BCC Bill (RA 7716) is an entirely new provision not
contained in the House/Senate Bills.
 D) The period within which to promulgate the implementing rules and regulations
is within 60 days under SB 1630; No specific period under the House Bill, within
90 days under RA 7716 (BCC).

E) The House Bill provides for a general repealing clause i.e., all inconsistent
laws etc. are repealed. Section 16 of the Senate Bill expressly repeals Sections
113, 114, 116, 119 and 120 of the code. The same Senate Bill however contains
a general repealing clause in Sec. 21 thereof.

RA 7716 (BCC's Bill) expressly repeals Sections 113, 114 and 116 of the NIRC;
Article 39 (c) (d) and (e) of EO 226 and provides the repeal of Sec. 119 and 120
of the NIRC upon the expiration of two (2) years unless otherwise excluded by
the President.

The charge that the Bicameral Conference Committee added new provisions in the bills of the
two chambers is hardly disputed by respondents. Instead, respondents justify them. According
to respondents: (1) the Bicameral Conference Committee has an ex post veto power or a veto
after the fact of approval of the bill by both Houses; (2) the bill prepared by the Bicameral
Conference Committee, with its additions and deletions, was anyway approved by both Houses;
(3) it was the practice in past Congresses for conference committees to insert in bills approved
by the two Houses new provisions that were not originally contemplated by them; and (4) the
enrolled bill doctrine precludes inquiry into the regularity of the proceedings that led to the
enactment of R.A. 7716.

With due respect, I reject these contentions which will cave in on closer examination.

First. There is absolutely no legal warrant for the bold submission that a Bicameral Conference
Committee possesses the power to add/delete provisions in bills already approved on third
reading by both Houses or an ex post veto power. To support this postulate that can enfeeble
Congress itself, respondents cite no constitutional provision, no law, not even any rule or
regulation. 3 Worse, their stance is categorically repudiated by the rules of both the Senate and
the House of Representatives which define with precision the parameters of power of a
Bicameral Conference Committee. Thus, Section 209, Rule XII of the Rules of the Senate
provides;

In the event that the Senate does not agree with the House of Representatives
on the provision of any bill or joint resolution, the differences shall be settled by a
conference committee of both Houses which shall meet within ten days after their
composition.

Each Conference Committee Report shall contain a detailed and sufficiently

explicit statement of the changes in or amendments to the subject measure, and
shall be signed by the conferees. (Emphasis supplied)

The counterpart rule of the House of Representatives is cast in near identical language. Section
85 of the Rules of the House of Representatives pertinently provides:

In the event that the House does not agree with the Senate on the amendments
to any bill or joint resolution, the differences may be settled by a conference
committee of both chambers.
 . . . . Each report shall contain a detailed, sufficiently explicit statement of the
changes in or amendments to the subject measure. (Emphasis supplied)

The Jefferson's Manual has been adopted 4 as a supplement to our parliamentary rules and
practice. Section 456 of Jefferson's Manual similarly confines the powers of a conference
committee, viz: 5

The managers of a conference must confine themselves to the differences

committed to them . . . and may not include subjects not within the
disagreements, even though germane to a question in issue.

This rule of antiquity has been honed and honored in practice by the Congress of the United
States. Thus, it is chronicled by Floyd Biddick, Parliamentarian Emeritus of the United States
Senate, viz: 6

Committees of conference are appointed for the sole purpose of compromising

and adjusting the differing and conflicting opinions of the two Houses and the
committees of conference alone can grant compromises and modify propositions
of either Houses within the limits of the disagreement. Conferees are limited to
the consideration of differences between the two Houses.

Conferees shall not insert in their report matters not committed to them by either
House, nor shall they strike from the bill matters agreed to by both Houses. No
matter on which there is nothing in either the Senate or House passed versions
of a bill may be included in the conference report and actions to the contrary
would subject the report to a point of order. (Emphasis ours)

In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House of
Representative to support the thesis of the respondents that a bicameral conference committee
is clothed with an ex post veto power.

But the thesis that a Bicameral Conference Committee can wield ex post veto power does not
only contravene the rules of both the Senate and the House. It wages war against our settled
ideals of representative democracy. For the inevitable, catastrophic effect of the thesis is to
install a Bicameral Conference Committee as the Third Chamber of our
Congress, similarly vested with the power to make laws but with the dissimilarity that its laws
are not the subject of a free and full discussion of both Houses of Congress. With such a
vagrant power, a Bicameral Conference Committee acting as a Third Chamber will be a
constitutional monstrosity.

It needs no omniscience to perceive that our Constitution did not provide for a Congress
composed of three chambers. On the contrary, section 1, Article VI of the Constitution provides
in clear and certain language: "The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives . . ." Note that in
vesting legislative power exclusively to the Senate and the House, the Constitution used the
word "shall." Its command for a Congress of two houses is mandatory. It is not mandatory
sometimes.

In vesting legislative power to the Senate, the Constitution means the Senate ". . . composed of
twenty-four Senators . . . elected at large by the qualified voters of the
Philippines . . . ." 7 Similarly, when the Constitution vested the legislative power to the House, it
means the House ". . . composed of not more than two hundred and fifty members . . . who shall
be elected from legislative districts . . . and those who . . . shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations." 8 The Constitution
thus, did not vest on a Bicameral Conference Committee with an ad hoc membership the power
to legislate for it exclusively vested legislative power to the Senate and the House as co-equal
bodies. To be sure, the Constitution does not mention the Bicameral Conference Committees of
Congress. No constitutional status is accorded to them. They are not even statutory creations.
They owe their existence from the internal rules of the two Houses of Congress. Yet,
respondents peddle the disconcerting idea that they should be recognized as a Third Chamber
of Congress and with ex post veto power at that.

The thesis that a Bicameral Conference Committee can exercise law making power with ex
post veto power is freighted with mischief. Law making is a power that can be used for good or
for ill, hence, our Constitution carefully laid out a plan and a procedure for its exercise. Firstly, it
vouchsafed that the power to make laws should be exercised by no other body except the
Senate and the House. It ought to be indubitable that what is contemplated is the Senate acting
as a full Senate and the House acting as a full House. It is only when the Senate and the House
act as whole bodies that they truly represent the people. And it is only when they represent the
people that they can legitimately pass laws. Laws that are not enacted by the people's rightful
representatives subvert the people's sovereignty. Bicameral Conference Committees, with
their ad hoc character and limited membership, cannot pass laws for they do not represent the
people. The Constitution does not allow the tyranny of the majority. Yet, the respondents will
impose the worst kind of tyranny — the tyranny of the minority over the majority. Secondly, the
Constitution delineated in deft strokes the steps to be followed in making laws. The overriding
purpose of these procedural rules is to assure that only bills that successfully survive the
searching scrutiny of the proper committees of Congress and the full and unfettered
deliberations of both Houses can become laws. For this reason, a bill has to undergo three (3)
mandatory separate readings in each House. In the case at bench, the additions and deletions
made by the Bicameral Conference Committee did not enjoy the enlightened studies of
appropriate committees. It is meet to note that the complexities of modern day legislations have
made our committee system a significant part of the legislative process. Thomas Reed called
the committee system as "the eye, the ear, the hand, and very often the brain of the house."
President Woodrow Wilson of the United States once referred to the government of the United
States as "a government by the Chairman of the Standing Committees of Congress. . .
" 9 Neither did these additions and deletions of the Bicameral Conference Committee pass
through the coils of collective deliberation of the members of the two Houses acting separately.
Due to this shortcircuiting of the constitutional procedure of making laws, confusion shrouds the
enactment of R.A. No. 7716. Who inserted the additions and deletions remains a mystery. Why
they were inserted is a riddle. To use a Churchillian phrase, lawmaking should not be a riddle
wrapped in an enigma. It cannot be, for Article II, section 28 of the Constitution mandates the
State to adopt and implement a "policy of full public disclosure of all its transactions involving
public interest." The Constitution could not have contemplated a Congress of invisible and
unaccountable John and Mary Does. A law whose rationale is a riddle and whose authorship is
obscure cannot bind the people.

All these notwithstanding, respondents resort to the legal cosmetology that these additions and
deletions should govern the people as laws because the Bicameral Conference Committee
Report was anyway submitted to and approved by the Senate and the House of
Representatives. The submission may have some merit with respect to provisions agreed upon
by the Committee in the process of reconciling conflicts between S.B. No. 1630 and H.B. No.
11197. In these instances, the conflicting provisions had been previously screened by the
proper committees, deliberated upon by both Houses and approved by them. It is, however, a
different matter with respect to additions and deletions which were entirely new and which were
made not to reconcile inconsistencies between S.B. No. 1630 and H.B. No. 11197. The
members of the Bicameral Conference Committee did not have any authority to add new
provisions or delete provisions already approved by both Houses as it was not necessary to
discharge their limited task of reconciling differences in bills. At that late stage of law making,
the Conference Committee cannot add/delete provisions which can become laws without
undergoing the study and deliberation of both chambers given to bills on 1st, 2nd, and 3rd
readings. Even the Senate and the House cannot enact a law which will not undergo these
mandatory three (3) readings required by the Constitution. If the Senate and the House cannot
enact such a law, neither can the lesser Bicameral Conference Committee.

Moreover, the so-called choice given to the members of both Houses to either approve or
disapprove the said additions and deletions is more of an optical illusion. These additions and
deletions are not submitted separately for approval. They are tucked to the entire bill. The vote
is on the bill as a package, i.e., together with the insertions and deletions. And the vote is either
"aye" or "nay," without any further debate and deliberation. Quite often, legislators vote "yes"
because they approve of the bill as a whole although they may object to its amendments by the
Conference Committee. This lack of real choice is well observed by Robert Luce: 10

Their power lies chiefly in the fact that reports of conference committees must be
accepted without amendment or else rejected in toto. The impulse is to get done
with the matter and so the motion to accept has undue advantage, for some
members are sure to prefer swallowing unpalatable provisions rather than
prolong controversy. This is the more likely if the report comes in the rush of
business toward the end of a session, when to seek further conference might
result in the loss of the measure altogether. At any time in the session there is
some risk of such a result following the rejection of a conference report, for it may
not be possible to secure a second conference, or delay may give opposition to
the main proposal chance to develop more strength.

In a similar vein, Prof. Jack Davies commented that "conference reports are returned to
assembly and Senate on a take-it or leave-it-basis, and the bodies are generally placed in the
position that to leave-it is a practical impossibility." 11 Thus, he concludes that "conference
committee action is the most undemocratic procedure in the legislative process." 12

The respondents also contend that the additions and deletions made by the Bicameral
Conference Committee were in accord with legislative customs and usages. The argument does
not persuade for it misappreciates the value of customs and usages in the hierarchy of sources
of legislative rules of procedure. To be sure, every legislative assembly has the inherent right to
promulgate its own internal rules. In our jurisdiction, Article VI, section 16(3) of the Constitution
provides that "Each House may determine the rules of its proceedings . . ." But it is hornbook
law that the sources of Rules of Procedure are many and hierarchical in character. Mason laid
them down as follows: 13

xxx xxx xxx

1. Rules of Procedure are derived from several sources. The principal sources
are as follows:
 a. Constitutional rules.

b. Statutory rules or charter provisions.

c. Adopted rules.

d. Judicial decisions.

e. Adopted parliamentary authority.

f. Parliamentary law.

g. Customs and usages.

2. The rules from the different sources take precedence in the order listed
above except that judicial decisions, since they are interpretations of rules from
one of the other sources, take the same precedence as the source interpreted.
Thus, for example, an interpretation of a constitutional provision takes
precedence over a statute.

3. Whenever there is conflict between rules from these sources the rule from the
source listed earlier prevails over the rule from the source listed, later. Thus,
where the Constitution requires three readings of bills, this provision controls
over any provision of statute, adopted rules, adopted manual, or of parliamentary
law, and a rule of parliamentary law controls over a local usage but must give
way to any rule from a higher source of authority. (Emphasis ours)

As discussed above, the unauthorized additions and deletions made by the Bicameral
Conference Committee violated the procedure fixed by the Constitution in the making of laws. It
is reasonless for respondents therefore to justify these insertions as sanctioned by customs and
usages.

Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial
inquiry on whether Congress observed our constitutional procedure in the passage of R.A. No.
7716. The enrolled bill theory is a historical relic that should not continuously rule us from the
fossilized past. It should be immediately emphasized that the enrolled bill theory originated in
England where there is no written constitution and where Parliament is
supreme. 14 In this jurisdiction, we have a written constitution and the legislature is a body of
limited powers. Likewise, it must be pointed out that starting from the decade of the 40's, even
American courts have veered away from the rigidity and unrealism of the conclusiveness of an
enrolled bill. Prof. Sutherland observed: 15

xxx xxx xxx.

Where the failure of constitutional compliance in the enactment of statutes is not

discoverable from the face of the act itself but may be demonstrated by recourse
to the legislative journals, debates, committee reports or papers of the governor,
courts have used several conflicting theories with which to dispose of the issue.
They have held: (1) that the enrolled bill is conclusive and like the sheriff's return
 cannot be attacked; (2) that the enrolled bill is prima facie correct and only in
case the legislative journal shows affirmative contradiction of the constitutional
requirement will the bill be held invalid, (3) that although the enrolled bill is prima
facie correct, evidence from the journals, or other extrinsic sources is admissible
to strike the bill down; (4) that the legislative journal is conclusive and the
enrolled bill is valid only if it accords with the recital in the journal and the
constitutional procedure.

Various jurisdictions have adopted these alternative approaches in view of strong dissent and
dissatisfaction against the philosophical underpinnings of the conclusiveness of an enrolled bill.
Prof. Sutherland further observed:

. . . Numerous reasons have been given for this rule. Traditionally, an enrolled bill
was "a record" and as such was not subject to attack at common law. Likewise,
the rule of conclusiveness was similar to the common law rule of the inviolability
of the sheriff's return. Indeed, they had the same origin, that is, the sheriff was an
officer of the king and likewise the parliamentary act was a regal act and no
official might dispute the king's word. Transposed to our democratic system of
government, courts held that as the legislature was an official branch of
government the court must indulge every presumption that the legislative act was
valid. The doctrine of separation of powers was advanced as a strong reason
why the court should treat the acts of a co-ordinate branch of government with
the same respect as it treats the action of its own officers; indeed, it was thought
that it was entitled to even greater respect, else the court might be in the position
of reviewing the work of a supposedly equal branch of government. When these
arguments failed, as they frequently did, the doctrine of convenience was
advanced, that is, that it was not only an undue burden upon the legislature to
preserve its records to meet the attack of persons not affected by the procedure
of enactment, but also that it unnecessarily complicated litigation and confused
the trial of substantive issues.

Although many of these arguments are persuasive and are indeed the basis for
the rule in many states today, they are not invulnerable to attack. The rule most
relied on — the sheriff's return or sworn official rule — did not in civil litigation
deprive the injured party of an action, for always he could sue the sheriff upon his
official bond. Likewise, although collateral attack was not permitted, direct attack
permitted raising the issue of fraud, and at a later date attack in equity was also
available; and that the evidence of the sheriff was not of unusual weight was
demonstrated by the fact that in an action against the sheriff no presumption of
its authenticity prevailed.

The argument that the enrolled bill is a "record" and therefore unimpeachable is
likewise misleading, for the correction of records is a matter of established
judicial procedure. Apparently, the justification is either the historical one that the
king's word could not be questioned or the separation of powers principle that
one branch of the government must treat as valid the acts of another.

Persuasive as these arguments are, the tendency today is to avoid reaching

results by artificial presumptions and thus it would seem desirable to insist that
the enrolled bill stand or fall on the basis of the relevant evidence which may be
 submitted for or against it.
(Emphasis ours)

Thus, as far back as the 1940's, Prof. Sutherland confirmed that ". . . the tendency seems to be
toward the abandonment of the conclusive presumption rule and the adoption of the third rule
leaving only a prima facie presumption of validity which may be attacked by any authoritative
source of information." 16

I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as
enunciated in the 1947 lead case of Mabanag v. Lopez Vito, and reiterated in subsequent
cases. 17

With due respect, I submit that these rulings are no longer good law. Part of the ratiocination
in Mabanag states:

xxx xxx xxx

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 old Code of Civil
Procedure, as amended by Act No. 2210, provides: "Official documents" may be
proved as follows: . . . (2) the proceedings of the Philippine Commission, or of
any legislative 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 copies certified by the clerk or secretary,
or printed by their order; Provided, That in the case of Acts of the Philippine
Commission or the Philippine Legislature, when there is an existence of a copy
signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof.

Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No.
2210 is no longer in our statute books. It has long been repealed by the Rules of
Court. Mabanag also relied on jurisprudence and authorities in the United States which are
under severe criticisms by modern scholars. Hence, even in the United States the
conclusiveness of an enrolled bill has been junked by most of the States. It is also true that as
late as last year, in the case of Philippine Judges Association v. Prado, op. cit., this Court still
relied on the conclusiveness of an enrolled bill as it refused to invalidate a provision of law on
the ground that it was merely inserted by the bicameral conference committee of both
Houses. Prado, however, is distinguishable. In Prado, the alleged insertion of the second
paragraph of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary does
not appear to be an uncontested fact. In the case at bench, the numerous additions/deletions
made by the Bicameral Conference Committee as detailed by petitioners Tolentino and Salonga
are not disputed by the respondents. In Prado, the Court was not also confronted with the
argument that it can no longer rely on the conclusiveness of an enrolled bill in light of the new
provision in the Constitution defining judicial power. More specifically, section 1 of Article VIII
now provides:

Sec. 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 and enforceable,
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 any branch or
instrumentality of the Government. (Emphasis supplied)

Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional
Commission explained the sense and the reach of judicial power as follows: 18

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 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
pass judgment on matters of this nature.

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

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which
it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as
a duty of this Court to strike down any act of a branch or instrumentality of government or any of
its officials 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 elected by the people.

It is, however, theorized that this provision is nothing new. 19 I beg to disagree for the view
misses the significant changes 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 between and among the three great branches of our
government — the Executive, the Legislative and the Judiciary. To upgrade the powers of the
Judiciary, the Constitutional Commission strengthened some more the independence of courts.
Thus, it further protected the security of tenure of the members of the Judiciary by providing "No
law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
Members." 20 It also guaranteed fiscal autonomy to the Judiciary. 21

More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council
which was tasked with screening the list of prospective appointees to the judiciary. 22 The power
of confirming appointments to the judiciary was also taken away from Congress. 23 The
President 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 24 and ninety (90) days
from the submission of the list of recommendees by the Judicial and Bar Council in case of
vacancies in the lower courts. 25 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." 26 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 administrative
functions." 27 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
powers of the President clipped by the Constitution is his power to suspend the writ of habeas
corpus and to proclaim martial law. The exercise of this power is now subject to revocation by
Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be
reviewed by this Court in an appropriate proceeding filed by any citizen. 28

The provision defining judicial power as including 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 the Government" constitutes
the capstone of the efforts of the Constitutional Commission to upgrade the powers of this
Court vis-a-vis the other branches of government. This provision was dictated by our experience
under martial law which taught us that a stronger and more independent judiciary is needed to
abort abuses in government. As sharply stressed by petitioner Salonga, this provision is
distinctly Filipino and its interpretation should not be depreciated by undue reliance on
inapplicable foreign jurisprudence. It is thus crystal clear that unlike other Supreme Courts, this
Court has been mandated by our new Constitution to be a more active agent in annulling acts of
grave abuse of discretion committed by a branch of government or any of its officials. This new
role, however, will not compel the Court, appropriately defined by Prof. A. Bickel as the least
dangerous branch of government, to assume imperial powers and run roughshod over the
principle of separation of power for that is judicial tyranny by any language. But while respecting
the essential of the principle of separation of power, the Court is not to be restricted by its non-
essentials. Applied to the case at bench, by voiding R.A. No. 7716 on the ground that its
enactment violated the procedure imposed by the Constitution in lawmaking, the Court is not by
any means wrecking the wall separating the powers between the legislature and the judiciary.
For in so doing, the Court is not engaging in lawmaking which is the essence of legislative
power. But the Court's interposition of power should not be defeated by the conclusiveness of
the enrolled bill. A resort to this fiction will result in the enactment of laws not properly
deliberated upon and passed by Congress. Certainly, the enrolled bill theory was not conceived
to cover up violations of the constitutional procedure in law making, a procedure intended to
assure the passage of good laws. The conclusiveness of the enrolled bill can, therefore, be
disregarded for it is not necessary to preserve the principle of separation of powers.

In sum, I submit that in imposing to this Court the duty to annul acts of government committed
with grave abuse 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 determining what it cannot do; under the 1987 Constitution,
there is a shift in stress — this Court is mandated to approach constitutional violations not by
finding out what it should not do but what it must do. The Court must discharge this solemn duty
by not resuscitating a past that petrifies the present.

I vote to declare R.A. No. 7716 unconstitutional.

BELLOSILLO, J.:

With a consensus already reached after due deliberations, silence perhaps should be the better
part of discretion, except to vote. The different views and opinions expressed are so persuasive
and convincing; they are more than enough to sway the pendulum for or against the subject
petitions. The penetrating and scholarly dissertations of my brethren should dispense with
further arguments which may only confound and confuse even the most learned of men.

But there is a crucial point, a constitutional issue which, I submit, has been belittled, treated
lightly, if not almost considered insignificant and purposeless. It is elementary, as much as it is
fundamental. I am referring to the word "exclusively" appearing in Sec. 24, Art. VI, of our 1987
Constitution. This is regrettable, to say the least, as it involves a constitutional mandate which,
wittingly or unwittingly, has been cast aside as trivial and meaningless.

A comparison of the particular provision on the enactment of revenue bills in the U.S.
Constitution with its counterpart in the Philippine Constitution will help explain my position.

Under the U.S. Constitution, "[a]ll bills for raising revenue shall originate in the House of
Representatives; but the Senate may propose or concur with amendments as on other bills"
(Sec. 7, par. [1], Art. I). In contrast, our 1987 Constitution reads: "All appropriation, revenue or
tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills
shall originate exclusively in the House of Representatives, but the Senate may propose or
concur with amendments" (Sec. 24, Art. VI; Emphasis supplied).

As may be gleaned from the pertinent provision of our Constitution, all revenue bills are required
to originate "exclusively" in the House of Representatives. On the other hand, the U.S.
Constitution does not use the word "exclusively;" it merely says, "[a]ll bills for raising revenue
shall originate in the House of Representatives."

Since the term "exclusively" has already been adequately defined in the various opinions, as to
which there seems to be no dispute, I shall no longer offer my own definition.

Verily, the provision in our Constitution requiring that all revenue bills shall originate exclusively
from the Lower House is mandatory. The word "exclusively" is an "exclusive word," which is
indicative of an intent that the provision is mandatory. 1 Hence, all American authorities
expounding on the meaning and application of Sec. 7, par. (1), Art. I, of the U.S. Constitution
cannot be used in the interpretation of Sec. 24, Art. VI, of our 1987 Constitution which has a
distinct feature of "exclusiveness" all its own. Thus, when our Constitution absolutely requires —
as it is mandatory — that a particular bill should exclusively emanate from the Lower House,
there is no alternative to the requirement that the bill to become valid law must originate
exclusively from that House.

In the interpretation of constitutions, questions frequently arise as to whether particular sections

are mandatory or directory. The courts usually hesitate to declare that a constitutional provision
is directory merely in view of the tendency of the legislature to disregard provisions which are
not said to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as
mandatory, and not to leave any discretion to the will of the legislature to obey or disregard
them. This presumption as to mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory. So strong is the inclination in
favor of giving obligatory force to the terms of the organic law that it has even been said that
neither by the courts nor by any other department of the government may any provision of the
Constitution be regarded as merely directory, but that each and everyone of its provisions
should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes. 2
The framers of our 1987 Constitution could not have used the term "exclusively" if they only
meant to replicate and adopt in toto the U.S. version. By inserting "exclusively" in Sec. 24, Art.
VI, of our Constitution, their message is clear: they wanted it different, strong, stringent. There
must be a compelling reason for the inclusion of the word "exclusively," which cannot be an act
of retrogression but progression, an improvement on its precursor. Thus, "exclusively" must be
given its true meaning, its purpose observed and virtue recognized, for it could not have been
conceived to be of minor consequence. That construction is to be sought which gives effect to
the whole of the statute — its every word. Ut magis valeat quam pereat.

Consequently, any reference to American authorities, decisions and opinions, however wisely
and delicately put, can only mislead in the interpretation of our own Constitution. To refer to
them in defending the constitutionality of R.A. 7716, subject of the present petitions, is to argue
on a false premise, i.e., that Sec. 24, Art. VI, of our 1987 Constitution is, or means exactly, the
same as Sec. 7, par. (1), Art. I, of the U.S. Constitution, which is not correct. Hence, only a
wrong conclusion can be drawn from a wrong premise.

For example, it is argued that in the United States, from where our own legislature is patterned,
the Senate can practically substitute its own tax measure for that of the Lower House. Thus,
according to the Majority, citing an American case, "the validity of Sec. 37 which the Senate had
inserted in the Tariff Act of 1909 by imposing an ad valorem tax based on the weight of vessels,
was upheld against the claim that the revenue bill originated in the Senate in contravention of
Art. I, Sec. 7, of the U.S. Constitution." 3 In an effort to be more convincing, the Majority even
quotes the footnote in Introduction to American Government by F.A. Ogg and P.O. Ray which
reads —

Thus in 1883 the upper house struck out everything after the enacting clause of a
tariff bill and wrote its own measure, which the House eventually felt obliged to
accept. It likewise added 847 amendments to the Payne-Aldrich tariff act of 1909,
dictated the schedules of the emergency tariff act of 1921, rewrote an extensive
tax revision bill in the same year, and recast most of the permanent tariff bill of
1922 4 —

which in fact suggests, very clearly, that the subject revenue bill actually originated from the
Lower House and was only amended, perhaps considerably, by the Senate after it was passed
by the former and transmitted to the latter.

In the cases cited, where the statutes passed by the U.S. Congress were upheld, the revenue
bills did not actually originate from the Senate but, in fact, from the Lower House. Thus, the
Supreme Court of the United States, speaking through Chief Justice White in Rainey v. United
States 5 upheld the revenue bill passed by Congress and adopted the ruling of the lower court
that —

. . . the section in question is not void as a bill for raising revenue originating in
the Senate and not in the House of Representatives. It appears that the section
was proposed by the Senate as an amendment to a bill for raising revenue which
originated in the House. That is sufficient.

Flint v. Stone Tracy Co., 6 on which the Solicitor General heavily leans in his Consolidated
Comment as well as in his Memorandum, does not support the thesis of the Majority since the
subject bill therein actually originated from the Lower House and not from the Senate, and the
amendment merely covered a certain provision in the House bill.

In fine, in the cases cited which were lifted from American authorities, it appears that the
revenue bills in question actually originated from the House of Representatives and were
amended by the Senate only after they were transmitted to it. Perhaps, if the factual
circumstances in those cases were exactly the same as the ones at bench, then the subject
revenue or tariff bill may be upheld in this jurisdiction on the principle of substantial compliance,
as they were in the United States, except possibly in instances where the House bill undergoes
what is now referred to as "amendment by substitution," for that would be in derogation of our
Constitution which vests solely in the House of Representatives the power to initiate revenue
bills. A Senate amendment by substitution simply means that the bill in question did not in effect
originate from the lower chamber but from the upper chamber and not disguises itself as a mere
amendment of the House version.

It is also theorized that in the U.S., amendment by substitution is recognized. That may be true.
But the process may be validly effective only under the U.S. Constitution. The cases before us
present a totally different factual backdrop. Several months before the Lower House could even
pass HB No. 11197, P.S. Res. No. 734 and SB No. 1129 had already been filed in the Senate.
Worse, the Senate subsequently approved SB No. 1630 "in substitution of SB No. 1129, taking
into consideration P.S. Res. No. 734 and HB No. 11197," and not HB No. 11197 itself "as
amended." Here, the Senate could not have proposed or concurred with amendments because
there was nothing to concur with or amend except its own bill. It must be stressed that the
process of concurring or amending presupposes that there exists a bill upon which concurrence
may be based or amendments introduced. The Senate should have reported out HB No. 11197,
as amended, even if in the amendment it took into consideration SB No. 1630. It should not
have submitted to the Bicameral Conference Committee SB No. 1630 which, admittedly, did not
originate exclusively from the Lower House.

But even assuming that in our jurisdiction a revenue bill of the Lower House may be amended
by substitution by the Senate — although I am not prepared to accept it in view of Sec. 24, Art.
VI, of our Constitution — still R.A. 7716 could not have been the result of amendment by
substitution since the Senate had no House bill to speak of that it could amend when the Senate
started deliberating on its own version.

Be that as it may, I cannot rest easy on the proposition that a constitutional mandate calling for
the exclusive power and prerogative of the House of Representatives may just be discarded and
ignored by the Senate. Since the Constitution is for the observance of all — the judiciary as well
as the other departments of government — and the judges are sworn to support its provisions,
the courts are not at liberty to overlook or disregard its commands. And it is not fair and just to
impute to them undue interference if they look into the validity of legislative enactments to
determine whether the fundamental law has been faithfully observed in the process. It is their
duty to give effect to the existing Constitution and to obey all constitutional provisions
irrespective of their opinion as to the wisdom of such provisions.

The rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be
declined and must be performed in accordance with the deliberate judgment of the tribunal
before which the validity of the enactment is directly drawn into question. When it is clear that a
statute transgresses the authority vested in the legislature by the Constitution, it is the duty of
the courts to declare the act unconstitutional because they cannot shirk from it without violating
their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law
of the state is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute
is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the
Constitution. Any other course would lead to the destruction of the Constitution. Since the
question as to the constitutionality of a statute is a judicial matter, the courts will not decline the
exercise of jurisdiction upon the suggestion that action might be taken by political agencies in
disregard of the judgment of the judicial tribunals. 7

It is my submission that the power and authority to originate revenue bills under our Constitution
is vested exclusively in the House of Representatives. Its members being more numerous than
those of the Senate, elected more frequently, and more directly represent the people, are
therefore considered better aware of the economic life of their individual constituencies. It is just
proper that revenue bills originate exclusively from them.

In this regard, we do not have to devote much time delving into American decisions and
opinions and invoke them in the interpretation of our own Constitution which is different from the
American version, particularly on the enactment of revenue bills. We have our own Constitution
couched in a language our own legislators thought best. Insofar as revenue bills are concerned,
our Constitution is not American; it is distinctively Filipino. And no amplitude of legerdemain can
detract from our constitutional requirement that all appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and private bills shall
originate exclusively in the House of Representatives, although the Senate may propose or
concur with amendments.

In this milieu, I am left no option but to vote to grant the petitions and strike down R.A. 7716 as
unconstitutional.

# Separate Opinions

NARVASA, C.J.:

I fully concur with the conclusions set forth in the scholarly opinion of my learned colleague, Mr
Justice Vicente V. Mendoza. I write this separate opinion to express my own views relative to
the procedural issues raised by the various petitions and death with by some other Members of
the Court in their separate opinions.

By their very nature, it would seem, discussions of constitutional issues prove fertile ground for
a not uncommon phenomenon: debate marked by passionate partisanship amounting
sometimes to impatience with adverse views, an eagerness on the part of the proponents on
each side to assume the role of, or be perceived as, staunch defenders of constitutional
principles, manifesting itself in flights of rhetoric, even hyperbole. The peril in this, obviously, is a
diminution of objectivity — that quality which, on the part of those charged with the duty and
authority of interpreting the fundamental law, is of the essence of their great function. For the
Court, more perhaps than for any other person or group, it is necessary to maintain that
desirable objectivity. It must make certain that on this as on any other occasion, the judicial
function is meticulously performed, the facts ascertained as comprehensively and as accurately
as possible, all the issues particularly identified, all the arguments clearly understood; else, it
may itself be accused, by its own members or by others, of a lack of adherence to, or a careless
observance of, its own procedures, the signatures of its individual members on its enrolled
verdicts notwithstanding.
In the matter now before the Court, and whatever reservations some people may entertain
about their intellectual limitations or moral scruples, I cannot bring myself to accept the thesis
which necessarily implies that the members of our august Congress, in enacting the expanded
VAT law, exposed their ignorance, or indifference to the observance, of the rules of procedure
set down by the Constitution or by their respective chambers, or what is worse, deliberately
ignored those rules for some yet undiscovered purpose nefarious in nature, or at least some
purpose other than the public weal; or that a few of their fellows, acting as a bicameral
conference committee, by devious schemes and cunning maneuvers, and in conspiracy with
officials of the Executive Department and others, succeeded in "pulling the wool over the eyes"
of all their other colleagues and foisting on them a bill containing provisions that neither
chamber of our bicameral legislature conceived or contemplated. This is the thesis that the
petitioners would have this Court approve. It is a thesis I consider bereft of any factual or logical
foundation.

Other than the bare declarations of some of the petitioners, or arguments from the use and
import of the language employed in the relevant documents and records, there is no evidence
before the Court adequate to support a finding that the legislators concerned, whether of the
upper or lower chamber, acted otherwise than in good faith, in the honest discharge of their
functions, in the sincere belief that the established procedures were being regularly observed or,
at least, that there occurred no serious or fatal deviation therefrom. There is no evidence on
which reasonably to rest a conclusion that any executive or other official took part in or unduly
influenced the proceedings before the bicameral conference committee, or that the members of
the latter were motivated by a desire to surreptitiously introduce improper revisions in the bills
which they were required to reconcile, or that after agreement had been reached on the mode
and manner of reconciliation of the "disagreeing provisions," had resorted to stratragems or
employed under-handed ploys to ensure their approval and adoption by either House. Neither is
there any proof that in voting on the Bicameral Conference Committee (BCC) version of the
reconciled bills, the members of the Senate and the House did so in ignorance of, or without
understanding, the contents thereof or the bills therein reconciled.

Also unacceptable is the theory that since the Constitution requires appropriation and revenue
bills to originate exclusively in the House of Representatives, it is improper if not unconstitutional
for the Senate to formulate, or even think about formulating, its own draft of this type of measure
in anticipation of receipt of one transmitted by the lower Chamber. This is specially cogent as
regards much-publicized suggestions for legislation (like the expanded VAT Law) emanating
from one or more legislators, or from the Executive Department, or the private sector, etc. which
understandably could be expected to forthwith generate much Congressional cogitation.

Exclusive origination, I submit, should have no reference to time of conception. As a practical

matter, origination should refer to the affirmative act which effectively puts the bicameral
legislative procedure in motion, i.e., the transmission by one chamber to the other of a bill for its
adoption. This is the purposeful act which sets the legislative machinery in operation to
effectively lead to the enactment of a statute. Until this transmission takes place, the formulation
and discussions, or the reading for three or more times of proposed measures in either
chamber, would be meaningless in the context of the activity leading towards concrete
legislation. Unless transmitted to the other chamber, a bill prepared by either house cannot
possibly become law. In other words, the first affirmative, efficacious step, the operative act as it
were, leading to actual enactment of a statute, is the transmission of a bill from one house to the
other for action by the latter. This is the origination that is spoken of in the Constitution in its
Article VI, Section 24, in reference to appropriation, revenue, or tariff bills, etc.
It may be that in the Senate, revenue or tax measures are discussed, even drafted, and this
before a similar activity takes place in the House. This is of no moment, so long as those
measures or

MISSING PAGE 3

Report (No. 349) stating that HB 11197 was considered, and recommending that SB 1630 be
approved "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 1 and
H.B. No. 11197." This Report made known to the Senate, and clearly indicates, that H.B. No.
11197 was indeed deliberated on by the Committee; in truth, as Senator Herrera pointed out,
the BCC later "agreed to adopt (a broader coverage of the VAT) which is closely adhering to the
Senate version ** ** with some new provisions or amendments." The plain implication is that the
Senate Committee had indeed discussed HB 11197 in comparison with the inconsistent parts of
SB 1129 and afterwards proposed amendments to the former in the form of a new bill (No.
1630) more closely akin to the Senate bill (No. 1129).

And it is as reasonable to suppose as not that later, during the second and third readings on
March 24, 1994, the Senators, assembled as a body, had before them copies of HB 11197 and
SB 1129, as well as of the Committee's new "SB 1630" that had been recommended for their
approval, or at the very least were otherwise perfectly aware that they were considering the
particular provisions of these bills. That there was such a deliberation in the Senate on HB
11197 in light of inconsistent portions of SB 1630, may further be necessarily inferred from the
request, made by the Senate on the same day, March 24, 1994, for the convocation of a
bicameral conference committee to reconcile "the disagreeing provisions of said bill (SB 1630)
and House Bill No. 11197," a request that could not have been made had not the Senators
more or less closely examined the provisions of HB 11197 and compared them with those of the
counterpart Senate measures.

Were the proceedings before the bicameral conference committee fatally flawed? The
affirmative is suggested because the committee allegedly overlooked or ignored the fact that SB
1630 could not validly originate in the Senate, and that HB 11197 and SB 1630 never properly
passed both chambers. The untenability of these contentions has already been demonstrated.
Now, demonstration of the indefensibility of other arguments purporting to establish the
impropriety of the BCC proceedings will be attempted.

There is the argument, for instance, that the conference committee never used HB 11197 even
as "frame of reference" because it does not appear that the suggestion therefor (made by
House Penal Chairman Exequiel Javier at the bicameral conference committee's meeting on
April 19, 1994, with the concurrence of Senator Maceda) was ever resolved, the minutes being
regrettably vague as to what occurred after that suggestion was made. It is, however, as
reasonable to assume that it was, as it was not, given the vagueness of the minutes already
alluded to. In fact, a reading of the BCC Report persuasively demonstrates that HB 11197 was
not only utilized as a "frame of reference" but actually discussed and deliberated on.

Said BCC Report pertinently states: 2

 CONFERENCE COMMITTEE REPORT

The Conference Committee on the disagreeing provisions of House Bill No.

11197, entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 1013, 104, 105, 106, 107,
108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113SD AND 114 OF TITLE V,
ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

and Senate Bill No. 1630 entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 1 106, 107, 108
AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V, ACND 236, 237,
AND 238 OF TITLE IX, AND REPEALING SECTIONS 1113, 114, 116, 119 AND
120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES

having met, after full and free conference, has agreed to recommend and do
hereby recommend to their respective Houses that House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance with the
attached copy of the bill as reconciled and approved by the conferees.

Approved.

The Report, it will be noted, explicitly adverts to House Bill No. 11197, it being in fact mentioned
ahead of Senate Bill No. 1630; graphically shows the very close identity of the subjects of both
bills (indicated in their respective titles); and clearly says that the committee met in "full and free
conference" on the "disagreeing provisions" of both bills (obviously in an effort to reconcile
them); and that reconciliation of said "disagreeing provisions" had been effected, the BCC
having agreed that "House Bill No. 11197, in consolidation with Senate Bill No. 1630, be
approved in accordance with the attached copy of the bill as reconciled and approved by the
conferees."

It may be concluded, in other words, that, conformably to the procedure provided in the
Constitution with which all the Members of the bicameral conference committee cannot but be
presumed to be familiar, and no proof to the contrary having been adduced on the point, it was
the original bill (HB 11197) which said body had considered and deliberated on in detail,
reconciled or harmonized with SB 1630, and used as basis for drawing up the amended version
eventually reported out and submitted to both houses of Congress.

It is further contended that the BCC was created and convoked prematurely, that SB 1630
should first have been sent to the House of Representatives for concurrence It is maintained, in
other words, that the latter chamber should have refused the Senate request for a bicameral
conference committee to reconcile the "disagreeing provisions" of both bills, and should have
required that SB 1630 be first transmitted to it. This, seemingly, is nit-picking given the urgency
of the proposed legislation as certified by the President (to both houses, in fact). Time was of
the essence, according to the President's best judgment — as regards which absolutely no one
in either chamber of Congress took exception, general acceptance being on the contrary
otherwise manifested — and that judgment the Court will not now question. In light of that
urgency, what was so vital or indispensable about such a transmittal that its absence would
invalidate all else that had been done towards enactment of the law, completely escapes me,
specially considering that the House had immediately acceded without demur to the request for
convocation of the conference committee.

What has just been said should dispose of the argument that the statement in the enrolled bill,
that "This Act which is a consolidation of House Bill No. 11197 and Senate Bill No. 11630 was
finally passed by the House of Representatives and the Senate on April 27, 1994 and May 2,
1994," necessarily signifies that there were two (2) bills separately introduced, retaining their
independent existence until they reached the bicameral conference committee where they
were consolidated, and therefore, the VAT law did not originate exclusively in the House having
originated in part in the Senate as SB 1630, which bill was not embodied in but merely merged
with HB 11197, retaining its separate identity until it was joined by the BCC with the house
measure. The more logical, and fairer, course is to construe the expression, "consolidation of
House Bill No. 11197 and Senate Bill No. 11630" in the context of accompanying and
contemporaneous statements, i.e.: (a) the declaration in the BCC Report, supra, that the
committee met to reconcile the disagreeing provisions of the two bills, "and after full and free
conference" on the matter, agreed and so recommended that "House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance with the attached copy of
the bill as reconciled and approved by the conferees;" and (b) the averment of Senator Herrera,
in the Report of the Ways and Means Committee, supra, that the committee had actually
"considered" (discussed) HB No. 11197 and taken it "into consideration" in recommending that
its own version of the measure (SB 1630) be the one approved.

That the Senate might have drawn up its own version of the expanded VAT bill,
contemporaneously with or even before the House did, is of no moment. It bears repeating in
this connection that no VAT bill ever originated in the Senate; neither its SB 1129 or SB 1630 or
any of its drafts was ever officially transmitted to the House as an initiating bill which, as already
pointed out, is what the Constitution forbids; it was HB 11197 that was first sent to the Senate,
underwent first reading, was referred to Committee on Ways and Means and there discussed in
relation to and in comparison with the counterpart Senate version or versions — the mere
formulation of which was, as also already discussed, not prohibited to it — and afterwards
considered by the Senate itself, also in connection with SB 1630, on second and third readings.
HB 11197 was in the truest sense, the originating bill.

An issue has also arisen respecting the so-called "enrolled bill doctrine" which, it is said,
whatever sacrosanct status it might originally have enjoyed, is now in bad odor with modern
scholars on account of its imputed rigidity and unrealism; it being also submitted that the ruling
in Mabanag v. Lopez Vito (78 Phil. 1) and the cases reaffirming it, is no longer good law, it
being based on a provision of the Code of Civil Procedure 3 long since stricken from the statute
books.

I would myself consider the "enrolled bill" theory as laying down a presumption of so strong a
character as to be well nigh absolute or conclusive, fully in accord with the familiar and
fundamental philosophy of separation of powers. The result, as far as I am concerned, is to
make discussion of the enrolled bill principle purely academic; for as already pointed out, there
is no proof worthy of the name of any facts to justify its reexamination and, possibly, disregard.

The other question is, what is the nature of the power given to a bicameral conference
committee of reconciling differences between, or "disagreeing provisions" in, a bill originating
from the House in relation to amendments proposed by the Senate — whether as regards some
or all of its provisions? Is the mode of reconciliation, subject to fixed procedure and guidelines?
What exactly can the committee do, or not do? Can it only clarify or revise provisions found in
either Senate or House bill? Is it forbidden to propose additional or new provisions, even on
matters necessarily or reasonably connected with or germane to items in the bills being
reconciled?

In answer, it is postulated that the reconciliation function is quite limited. In these cases, the
conference committee should have confined itself to reconciliation of differences or
inconsistencies only by (a) restoring provisions of HB11197 aliminated by SB 1630, or (b)
sustaining wholly or partly the Senate amendments, or (c) as a compromise, agreeing that
neither provisions nor amendments be carried into the final form of HB 11197 for submission to
both chambers of the legislature.

The trouble is, it is theorized, the committee incorporated activities or transactions which were
not within the contemplation of both bills; it made additions and deletions which did not enjoy the
enlightenment of initial committee studies; it exercised what is known as an "ex post veto
power" granted to it by no law, rule or regulation, a power that in truth is denied to it by the rules
of both the Senate and the House. In substantiation, the Senate rule is cited, similar to that of
the House, providing that "differences shall be settled by a conference committee" whose report
shall contain "detailed and sufficiently explicit statement of the changes in or amendments to the
subject measure, ** (to be) signed by the conferees;" as well as the "Jefferson's Manual,"
adopted by the Senate as supplement to its own rules, directing that the managers of the
conference must confine themselves to differences submitted to them; they may not include
subjects not within the disagreements even though germane to a question in issue."

It is significant that the limiting proviso in the relevant rules has been construed and applied as
directory, not mandatory. During the oral argument, counsel for petitioners admitted that the
practice for decades has been for bicameral conference committees to include such provisions
in the reconciled bill as they believed to be germane or necessary and acceptable to both
chambers, even if not within any of the "disagreeing provisions," and the reconciled bills,
containing such provisions had invariably been approved and adopted by both houses of
Congress. It is a practice, they say, that should be stopped. But it is a practice that establishes
in no uncertain manner the prevailing concept in both houses of Congress of the permissible
and acceptable modes of reconciliation that their conference committees may adopt, one whose
undesirability is not all that patent if not, indeed, incapable of unquestionable demonstration.
The fact is that conference committees only take up bills which have already been freely and
fully discussed in both chambers of the legislature, but as to which there is need of
reconciliation in view of "disagreeing provisions" between them; and both chambers entrust the
function of reconciling the bills to their delegates at a conference committee with full awareness,
and tacit consent, that conformably with established practice unquestioningly observed over
many years, new provisions may be included even if not within the "disagreeing provisions" but
of which, together with other changes, they will be given detailed and sufficiently explicit
information prior to voting on the conference committee version.
In any event, a fairly recent decision written for the Court by Senior Associate Justice Isagani A.
Cruz, promulgated on November 11, 1993 (G.R. No. 105371, The Philippine Judges
Association, etc., et al. v. Hon. Pete Prado, etc., et al.), should leave no doubt of the continuing
vitality of the enrolled bill doctrine and give an insight into the nature of the reconciling function
of bicameral conference committees. In that case, a bilateral conference committee was
constituted and met to reconcile Senate Bill No. 720 and House Bill No. 4200. It adopted a
"reconciled" measure that was submitted to and approved by both chambers of Congress and
ultimately signed into law by the President, as R.A. No. 7354. A provision in this statute
(removing the franking privilege from the courts, among others) was assailed as being an invalid
amendment because it was not included in the original version of either the senate or the house
bill and hence had generated no disagreement between them which had to be reconciled. The
Court held:

While it is true that a conference committee is the mechanism for compromising

differences between the Senate and the House, it is not limited in its jurisdiction
to this question. Its broader function is described thus:

A conference committee may deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where
the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be
inserted into the conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate. These excursions
occur even where the rules impose strict limitations on conference committee
jurisdiction. This is symptomatic of the authoritarian power of conference
committee (Davies, Legislative Law and Process: In A Nutshell, 1987 Ed., p. 81).

It is a matter of record that the Conference Committee Report on the bill in

question was returned to and duly approved by both the Senate and the House
of Representatives. Thereafter, the bill was enrolled with its certification by
Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House
of Representatives as having been duly passed by both Houses of Congress. It
was then presented to and approved by President Corazon C. Aquino on April 3,
1992.

Under the doctrine of separation of powers, the Court may not inquire beyond the
certification of the approval of a bill from the presiding officers of Congress.
Casco Philippine Chemical Co. v. Gimenez (7 SCRA 347) laid down the rule that
the enrolled bill is conclusive upon the Judiciary (except in matters that have to
be entered in the journals like the yeas and nays on the final reading of the bill)
(Mabanag v. Lopez Vito, 78 Phil. 1). The journals are themselves also binding on
the Supreme Court, as we held in the old (but still valid) case of U.S. v. Pons (34
Phil. 729), 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 to violate both the letter and
spirit of the organic laws by which the Philippine Government was brought into
existence, to invade a coordinate and independent department of the
Government, and to interfere with the legitimate 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 that
eventually R.A. No. 7354 and that copies thereof in its final form were not
distributed among the members of each House. Both the enrolled bill and the
legislative journals certify that the measure was duly enacted i.e., in accordance
with Article VI, Sec. 26 (2) of the Constitution. We are bound by such official
assurances from a coordinate department of the government, to which we owe,
at the very least, a becoming courtesy.

Withal, an analysis of the changes made by the conference committee in HB 11197 and SB
1630 by way of reconciling their "disagreeing provisions," — assailed by petitioners as
unauthorized or incongrouous — reveals that many of the changes related to actual
"disagreeing provisions," and that those that might perhaps be considered as entirely new are
nevertheless necessarily or logically connected with or germane to particular matters in the bills
being reconciled.

For instance, the change made by the bicameral conference committee (BCC) concerning
amendments to Section 99 of the National Internal Revenue Code (NIRC) — the addition of
"lessors of goods or properties and importers of goods" — is really a reconciliation of
disagreeing provisions, for while HB 11197 mentions as among those subject to tax, "one who
sells, barters, or exchanges goods or properties and any person who leases personal
properties," SB 1630 does not. The change also merely clarifies the provision by providing that
the contemplated taxpayers includes "importers." The revision as regards the amendment to
Section 100, NIRC, is also simple reconciliation, being nothing more than the adoption by the
BCC of the provision in HB 11197 governing the sale of gold to Bangko Sentral, in contrast to
SB 1630 containing no such provision. Similarly, only simple reconciliation was involved as
regards approval by the BCC of a provision declaring as not exempt, the sale of real properties
primarily held for sale to customers or held for lease in the ordinary course of trade or business,
which provision is found in HB 11197 but not in SB 1630; as regards the adoption by the BCC of
a provision on life insurance business, contained in SB 1630 but not found in HB 11197; as
regards adoption by the BCC of the provision in SB 1630 for deferment of tax on certain goods
and services for no longer than 3 years, as to which there was no counterpart provision in SB
11197; and as regards the fixing of a period for the adoption of implementing rules, a period
being prescribed in SB 1630 and none in HB 11197.

In respect of other revisions, it would seem that questions logically arose in the course of the
discussion of specific "disagreeing provisions" to which answers were given which, because
believed acceptable to both houses of Congress, were placed in the BCC draft. For example,
during consideration of radio and television time (Sec. 100, NIRC) dealt with in both House and
Senate bills, the question apparently came up, the relevance of which is apparent on its face,
relative to satellite transmission and cable television time. Hence, a provision in the BCC bill on
the matter. Again, while deliberating on the definition of goods or properties in relation to the
provision subjecting sales thereof to tax, a question apparently arose, logically relevant, about
real properties intended to be sold by a person in economic difficulties, or because he wishes to
buy a car, i.e., not as part of a business, the BCC evidently resolved to clarify the matter by
excluding from the tax, "real properties held primarily for sale to customers or held for lease in
the ordinary course of business." And in the course of consideration of the term, sale or
exchange of services (Sec 102, NIRC), the inquiry most probably was posed as to whether the
term should be understood as including other services: e.g., services of lessors of property
whether real or personal, of warehousemen, of keepers of resthouses, pension houses, inns,
resorts, or of common carriers, etc., and presumably the BCC resolved to clarify the matter by
including the services just mentioned. Surely, changes of this nature are obviously to be
expected in proceedings before bicameral conference committees and may even be considered
grist for their mill, given the history of such BCCs and their general practice here and abroad

In any case, all the changes and revisions, and deletions, made by the conference committee
were all subsequently considered by and approved by both the Senate and the House, meeting
and voting separately. It is an unacceptable theorization, to repeat, that when the BCC report
and its proposed bill were submitted to the Senate and the House, the members thereof did not
bother to read, or what is worse, having read did not understand, what was before them, or did
not realize that there were new provisions in the reconciled version unrelated to any
"disagreeing provisions," or that said new provisions or revisions were effectively concealed
from them

Moreover, it certainly was entirely within the power and prerogative of either legislative chamber
to reject the BCC bill and require the organization of a new bicameral conference committee.
That this option was not exercised by either house only proves that the BCC measure was
found to be acceptable as in fact it was approved and adopted by both chambers.

I vote to DISMISS the petitions for lack of merit.

PADILLA, J.:

The original VAT law and the expanded VAT law

In Kapatiran v. Tan,1 where the ponente was the writer of this Separate Opinion,
a unanimous Supreme Court en banc upheld the validity of the original VAT law (Executive
Order No. 273, approved on 25 July 1987). It will, in my view, be pointless at this time to re-
open arguments advanced in said case as to why said VAT law was invalid, and it will be
equally redundant to re-state the principles laid down by the Court in the same case affirming
the validity of the VAT law as a tax measure. And yet, the same arguments are, in effect,
marshalled against the merits and substance of the expanded VAT law (Rep. Act. No. 7716,
approved on 5 May 1994). The same Supreme Court decision should therefore dispose, in the
main, of such arguments, for the expanded VAT law is predicated basically on the same
principles as the original VAT law, except that now the tax base of the VAT imposition has been
expanded or broadened.

It only needs to be stated - what actually should be obvious - that a tax measure, like the
expanded VAT law (Republic Act. No. 7716), is enacted by Congress and approved by the
President in the exercise of the State's power to tax, which is an attribute of sovereignty. And
while the power to tax, if exercised without limit, is a power to destroy, and should, therefore, not
be allowed in such form, it has to be equally recognized that the power to tax is an essential
right of government. Without taxes, basic services to the people can come to a halt; economic
progress will be stunted, and, in the long run, the people will suffer the pains of stagnation and
retrogression.

Consequently, upon careful deliberation, I have no difficulty in reaching the conclusion that the
expanded VAT law comes within the legitimate power of the state to tax. And as I had occasion
to previously state:
 Constitutional Law, to begin with, is concerned with power not political
convenience, wisdom, exigency, or even necessity. Neither the Executive nor the
legislative (Commission on Appointments) can create power where the
Constitution confers none."2

Likewise, in the first VAT case, I said:

In any event, if petitioners seriously believe that the adoption and continued
application of the VAT are prejudicial to the general welfare or the interests of the
majority of the people, they should seek, recourse and relief from the political
branches of the government. The Court, following the time-honored doctrine of
separation of powers, cannot substitute its judgment for that of the President
(and Congress) as to the wisdom, justice and advisability of the adoption of the
VAT. 3

This Court should not, as a rule, concern itself with questions of policy, much less, economic
policy. That is better left to the two (2) political branches of government. That the expanded VAT
law is unwise, unpopular and even anti-poor, among other things said against it, are arguments
and considerations within the realm of policy-debate, which only Congress and the Executive
have the authority to decisively confront, alleviate, remedy and resolve.

II

The procedure followed in the approval of Rep. Act No. 7716

Petitioners however posit that the present case raises a far-reaching constitutional question
which the Court is duty-bound to decide under its expanded jurisdiction in the 1987
Constitution.4 Petitioners more specifically question and impugn the manner by which the
expanded VAT law (Rep. Act. No. 7716) was approved by Congress. They contend that it was
approved in violation of the Constitution from which fact it follows, as a consequence, that the
law is null and void. Main reliance of the petitioners in their assault in Section 24, Art. VI of the
Constitution which provides:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bill of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.

While it should be admitted at the outset that there was no rigorous and strict adherence to the
literal command of the above provision, it may however be said, after careful reflection, that
there was substantial compliance with the provision.

There is no question that House Bill No. 11197 expanding the VAT law originated from the
House of Representatives. It is undeniably a House measure. On the other hand, Senate Bill
No. 1129, also expanding the VAT law, originated from the Senate. It is undeniably a Senate
measure which, in point of time, actually antedated House Bill No. 11197.

But it is of record that when House Bill No. 11197 was, after approval by the House, sent to the
Senate, it was referred to, and considered by the Senate Committee on Ways and Means (after
first reading) together with Senate Bill No. 1129, and the Committee came out with Senate Bill
No. 1630 in substitution of Senate Bill No. 1129 but after expressly taking into consideration
House Bill No. 11197.

Since the Senate is, under the above-quoted constitutional provision, empowered to concur with
a revenue measure exclusively originating from the House, or to propose amendments thereto,
to the extent of proposing amendments by SUBSTITUTION to the House measure, the approval
by the Senate of Senate Bill No. 1630, after it had considered House Bill No. 11197, may be
taken, in my view, as an AMENDMENT BY SUBSTITUTION by the Senate not only of Senate
Bill No. 1129 but of House Bill No. 11197 as well which, it must be remembered, originated
exclusively from the House.

But then, in recognition of the fact that House Bill No. 11197 which originated exclusively from
the House and Senate Bill No. 1630 contained conflicting provisions, both bills (House Bill No.
11197 and Senate Bill No. 1630) were referred to the Bicameral Conference Committee for joint
consideration with a view to reconciling their conflicting provisions.

The Conference Committee came out eventually with a Conference Committee Bill which was
submitted to both chambers of Congress (the Senate and the House). The Conference
Committee reported out a bill consolidating provisions in House Bill No. 11197 and Senate Bill
No. 1630. What transpired in both chambers after the Conference Committee Report was
submitted to them is not clear from the records in this case. What is clear however is that both
chambers voted separately on the bill reported out by the Conference Committee and both
chambers approved the bill of the Conference Committee.

To me then, what should really be important is that both chambers of Congress approved the
bill reported out by the Conference Committee. In my considered view, the act of both chambers
of Congress in approving the Conference Committee bill, should put an end to any inquiry by
this Court as to how the bill came about. What is more, such separate approvals CURED
whatever constitutional infirmities may have arisen in the procedures leading to such approvals.
For, if such infirmities were serious enough to impugn the very validity of the measure itself,
there would have been an objection or objections from members of both chambers to the
approval. The Court has been shown no such objection on record in both chambers.

Petitioners contend that there were violations of Sec. 26 paragraph 2, Article VI of the
Constitution which provides:

SEC. 26. ...

(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.

in that, when Senate Bill No. 1630 (the Senate counterpart of House Bill No. 11197) was
approved by the Senate, after it had been reported out by the Senate Committee on Ways and
Means, the bill went through second and third readings on the same day (not separate days)
and printed copies thereof in its final form were not distributed to the members of the Senate at
least three (3) days before its passage by the Senate. But we are told by the respondents that
the reason for this "short cut" was that the President had certified to the necessity of the bill's
immediate enactment to meet an emergency - a certification that, by leave of the same
constitutional provision, dispensed with the second and third readings on separate days and the
printed form at least three (3) days before its passage.

We have here then a situation where the President did certify to the necessity of Senate Bill No.
1630's immediate enactment to meet an emergency and the Senate responded accordingly.
While I would be the last to say that this Court cannot review the exercise of such power by the
President in appropriate cases ripe for judicial review, I am not prepared however to say that the
President gravely abused his discretion in the exercise of such power as to require that this
Court overturn his action. We have been shown no fact or circumstance which would impugn
the judgment of the President, concurred in by the Senate, that there was an emergency that
required the immediate enactment of Senate Bill No. 1630. On the other hand, a becoming
respect for a co-equal and coordinate department of government points that weight and
credibility be given to such Presidential judgment.

The authority or power of the Conference Committee to make insertions in and deletions from
the bills referred to it, namely, House Bill No. 11197 and Senate Bill No. 1630 is likewise
assailed by petitioners. Again, what appears important here is that both chambers approved and
ratified the bill as reported out by the Conference Committee (with the reported insertions and
deletions). This is perhaps attributable to the known legislative practice of allowing a
Conference Committee to make insertions in and deletions from bills referred to it for
consideration, as long as they are germane to the subject matter of the bills under
consideration. Besides, when the Conference Committee made the insertions and deletions
complained of by petitioners, was it not actually performing the task assigned to it of reconciling
conflicting provisions in House Bill No. 11197 and Senate Bill No. 1630?

This Court impliedly if not expressly recognized the fact of such legislative practice in Philippine
Judges Association, etc. vs. Hon. Peter Prado, etc., 5 In said case, we stated thus:

The petitioners also invoke Sec. 74 of the Rules of the House of

Representatives, requiring that amendment to any bill when the House and the
Senate shall have differences thereon may be settled by a conference committee
of both chambers. They stress that Sec. 35 was never a subject of any
disagreement between both Houses and so the second paragraph could not
have been validly added as an amendment.

These arguments are unacceptable.

While it is true that a conference committee is the mechanism for compromising

differences between the Senate and the House, it is not limited in its jurisdiction
to this question. Its broader function is described thus:

‘A conference committee may deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where
the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be
inserted into the conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate. These excursions
 occurs even where the rules impose strict limitations on conference committee
jurisdiction. This is symptomatic of the authoritarian power of conference
committee (Davies, Legislative Law and Process: In A Nutshell, 1986 Ed., p. 81).’

It is a matter of record that the Conference Committee Report on the bill in

question was returned to and duly approved by both the Senate and the House
of Representatives. Thereafter, the bill was enrolled with its certification by
Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House
of Representatives as having been duly passed by both Houses of Congress. It
was then presented to and approved by President Corazon C. Aquino on April 3,
1992.

It would seem that if corrective measures are in order to clip the powers of the Conference
Committee, the remedy should come from either or both chambers of Congress, not from this
Court, under the time-honored doctrine of separation of powers.

Finally, as certified by the Secretary of the Senate and the Secretary General of the House of
Representatives -

This Act (Rep. Act No. 7716) is a consolidation of House Bill No. 11197 and
Senate Bill No. 1630 (w)as finally passed by the House of Representatives and
the Senate on April 27, 1994 and May 2, 1994 respectively.

Under the long-accepted doctrine of the "enrolled bill," the Court in deference to a co-equal and
coordinate branch of government is held to a recognition of Rep. Act No. 7716 as a law validly
enacted by Congress and, thereafter, approved by the President on 5 May 1994. Again, we
quote from out recent decision in Philippine Judges Association, supra:

Under the doctrine of separation of powers, the Court may not inquire beyond the
certification of the approval of a bill from the presiding officers of
Congress. Casco Philippine Chemical Co. v. Gimenez laid down the rule that the
enrolled bill is conclusive upon the Judiciary (except in matters that have to be
entered in the journals like the yeas and nays on the finally reading of the bill).
The journals are themselves also binding on the Supreme Court, as we held in
the old (but still valid) case of U.S. vs. Pons,8 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 to violate both the letter and
spirit of the organic laws by which the Philippine Government was brought into
existence, to invade a coordinate and independent department of the
Government, and to interfere with the legitimate 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 that eventually
became R.A. No. 7354 and that copies thereof in its final form were not
distributed among the members of each House. Both the enrolled bill and the
legislative journals certify that the measure was duly enacted i.e., in accordance
with Article VI, Sec. 26(2) of the Constitution. We are bound by such official
 assurances from a coordinate department of the government, to which we owe,
at the very least, a becoming courtesy.

III

Press Freedom and Religious Freedom and Rep. Act No. 7716

The validity of the passage of Rep. Act No. 7716 notwithstanding, certain provisions of the law
have to be examined separately and carefully.

Rep. Act. No. 7716 in imposing a value-added tax on circulation income of newspapers and
similar publications and on income derived from publishing advertisements in newspapers 9, to
my mind, violates Sec. 4, Art. III of the Constitution. Indeed, even the Executive Department has
tried to cure this defect by the issuance of the BIR Regulation No. 11-94 precluding
implementation of the tax in this area. It should be clear, however, that the BIR regulation
cannot amend the law (Rep. Act No. 7716). Only legislation (as distinguished from
administration regulation) can amend an existing law.

Freedom of the press was virtually unknown in the Philippines before 1900. In fact, a prime
cause of the revolution against Spain at the turn of the 19th century was the repression of the
freedom of speech and expression and of the press. No less than our national hero, Dr. Jose P.
Rizal, in "Filipinas Despues de Cien Anos" (The Philippines a Century Hence) describing the
reforms sine quibus non which the Filipinos were insisting upon, stated: "The minister ... who
wants his reforms to be reforms, must begin by declaring the press in the Philippines free ... ". 10

Press freedom in the Philippines has met repressions, most notable of which was the closure of
almost all forms of existing mass media upon the imposition of martial law on 21 September
1972.

Section 4, Art. III of the Constitution maybe traced to the United States Federal Constitution.
The guarantee of freedom of expression was planted in the Philippines by President McKinley in
the Magna Carta of Philippine Liberty, Instructions to the Second Philippine Commission on 7
April 1900.

The present constitutional provision which reads:

Sec. 4 No law shall be passed abridging the freedom of speech, of expression, or

of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.

is essentially the same as that guaranteed in the U.S. Federal Constitution, for which reason,
American case law giving judicial expression as to its meaning is highly persuasive in the
Philippines.

The plain words of the provision reveal the clear intention that no prior restraint can be imposed
on the exercise of free speech and expression if they are to remain effective and meaningful.

The U.S. Supreme Court in the leading case of Grosjean v. American Press Co. Inc @=. 11
declared a statute imposing a gross receipts license tax of 2% on circulation and advertising
income of newspaper publishers as constituting a prior restraint which is contrary to the
guarantee of freedom of the press.

In Bantam Books, Inc. v. Sullivan 12, the U.S. Supreme Court stated: "Any system of prior
restraint of expression comes to this Court bearing a heavy presumption against its
constitutionality."

In this jurisdiction, prior restraint on the exercise of free expression can be justified only on the
ground that there is a clear and present danger of a substantive evil which the State has the
right to prevent 13.

In the present case, the tax imposed on circulation and advertising income of newspaper
publishers is in the nature of a prior restraint on circulation and free expression and, absent a
clear showing that the requisite for prior restraint is present, the constitutional flaw in the law is
at once apparent and should not be allowed to proliferate.

Similarly, the imposition of the VAT on the sale and distribution of religious articles must be
struck down for being contrary to Sec. 5, Art. III of the Constitution which provides:

Sec. 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of civil or political
rights.

That such a tax on the sale and distribution of religious articles is unconstitutional, has been
long settled in American Bible Society, supra.

Insofar, therefore, as Rep. Act No. 7716 imposes a value-added tax on the exercise of the
above- discussed two (2) basic constitutional rights, Rep. Act No. 7716 should be declared
unconstitutional and of no legal force and effect.

IV

Petitions of CREBA and PAL and Rep. Act No. 7716

The Chamber of Real Estate and Builder's Association, Inc. (CREBA) filed its own petition (GR
No. 11574) arguing that the provisions of Rep. Act No. 7716 imposing a 10% value-added tax
on the gross selling price or gross value in money of every sale, barter or exchange of goods or
properties (Section 2) and a 10% value-added tax on gross receipts derived from the sale or
exchange of services, including the use or lease of properties (Section 3), violate the equal
protection, due process and non-impairment provisions of the Constitution as well as the rule
that taxation should be uniform, equitable and progressive.

The issue of whether or not the value-added tax is uniform, equitable and progressive has been
settled in Kapatiran.

CREBA which specifically assails the 10% value-added tax on the gross selling price of real
properties, fails to distinguish between a sale of real properties primarily held for sale to
customers or held for lease in the ordinary course of trade or business and isolated sales by
individual real property owners (Sec. 103[s]). That those engaged in the business of real estate
development realize great profits is of common knowledge and need not be discussed at length
here. The qualification in the law that the 10% VAT covers only sales of real property primarily
held for sale to customers, i.e. for trade or business thus takes into consideration a taxpayer's
capacity to pay. There is no showing that the consequent distinction in real estate sales is
arbitrary and in violation of the equal protection clause of the Constitution. The inherent power
to tax of the State, which is vested in the legislature, includes the power to determine whom or
what to tax, as well as how much to tax. In the abseence o f a clear showing that the tax violates
the due process and equal protection clauses of the Constitution, this Court, in keeping with the
doctrine of separation of powers, has to defer to the discretion and judgment of Congress on
this point.

Philippine Airlines (PAL) in a separate petition (G.R. No. 115852) claims that its franchise under
PD No. 1590 which makes it liable for a franchise tax of only 2% of gross revenues "in lieu of all
the other fees and charges of any kind, nature or description, imposed, levied, established,
assessed or collected by any municipal, city, provincial, or national authority or government
agency, now or in the future," cannot be amended by Rep. Act No. 7716 as to make it (PAL)
liable for a 10% value-added tax on revenues, because Sec. 24 of PD No. 1590 provides that
PAL's franchise can only be amended, modified or repealed by a special law specifically for that
purpose.

The validity of PAL's above argument can be tested by ascertaining the true intention of
Congress in enacting Rep. Act No. 7716. Sec. 4 thereof dealing with Exempt Transactions
states:

Section 103. Exempt Transactions. - The following shall be exempt from the
value-added tax:

xxx xxx xxx

(q) Transactions which are exempt under special laws, except those granted
under Presidential Decrees No. 66, 529, 972, 1491, 1590, ... " (Italics supplied)

The repealing clause of Rep. Act No. 7716 further reads:

Sec. 20. Repealing clauses. - The provisions of any special law relative to the
rate of franchise taxes are hereby expressly repealed.

xxx xxx xxx

All other laws, orders, issuances, rules and regulations or parts thereof
inconsistent with this Act are hereby repealed, amended or modified accordingly
(italics supplied)

There can be no dispute, in my mind, that the clear intent of Congress was to modify PAL's
franchise with respect to the taxes it has to pay. To this extent, Rep. Act No. 7716 can be
considered as a special law amending PAL's franchise and its tax liability thereunder. That Rep.
Act. No. 7716 imposes the value-added taxes on other subjects does not make it a general law
which cannot amend PD No. 1590.
To sum up: it is my considered view that Rep. Act No. 7716 (the expanded value-added tax) is a
valid law, viewed from both substantive and procedural standards, except only insofar as it
violates Secs. 4 and 5, Art. III of the Constitution (the guarantees of freedom of expression and
the free exercise of religion). To that extent, it is, in its present form, unconstitutional.

I, therefore, vote to DISMISS the petitions, subject to the above qualification.

VITUG, J.:

Lest we be lost by a quagmire of trifles, the real threshold and prejudicial issue, to my mind, is
whether or not this Court is ready to assume and to take upon itself with an overriding authority
the owesome responsibility of overseeing the entire bureaucracy. Far from it, ours is merely to
construe and to apply the law regardless of its wisdom and salutariness, and to strike it down
only when it clearly disregards constitutional proscriptions. It is what the fundamental law
mandates, and it is what the Court must do. I cannot yet concede to the novel theory, so
challengingly provocative as it might be, that under the 1987 Constitution the Court may now at
good liberty intrude, in the guise of the people's imprimatur, into every affair of the government.
What significance can still then remain, I ask, of the time honored and widely acclaimed
principle of separation of powers, if at every turn the Court allows itself to pass upon, at will, the
disposition of a co-equal, independent and coordinate branch in our system of government. I
dread to think of the so varied uncertainties that such an undue interference can lead to. The
respect for long standing doctrines in our jurisprudence, a nourished through time, is one of
maturity not timidity, of stability rather than quiescence.

It has never occurred to me, and neither do I believe it has been intended, that judicial tyranny is
envisioned, let alone institutionalized, by our people in the 1987 Constitution. The test of tyranny
is not solely on how it is wielded but on how, in the first place, it can be capable of being
exercised. It is time that any such perception of judicial omnipotence is corrected.

Against all that has been said, I see, in actuality in these cases at bench, neither a constitutional
infringement of substance, judging from precedents already laid down by this Court in previous
cases, nor a justiciability even now of the issues raised, more than an attempt to sadly highlight
the perceived shortcomings in the procedural enactment of laws, a matter which is internal to
Congress and an area that is best left to its own basic concern. The fact of the matter is that the
legislative enactment, in its final form, has received the ultimate approval of both houses of
Congress. The finest rhetoric, indeed fashionable in the early part of this closing century, would
still be a poor substitute for tangibility. I join, nonetheless, some of my colleagues in respectfully
inviting the kind attention of the honorable members of our Congress in the suggested
circumspect observance of their own rules.

A final remark. I should like to make it clear that this opinion does not necessarily foreclose the
right, peculiar to any taxpayer adversely affected, to pursue at the proper time, in appropriate
proceedings, and in proper for a, the specific remedies prescribed therefor by the National
Internal Revenue Code, Republic Act 1125, and other laws, as well as rules of procedure, such
as may be pertinent. Some petitions filed with this Court are, in essence, although styled
differently, in the nature of declaratory relief over which this Court is bereft of original
jurisdiction.
All considered, I, therefore, join my colleagues who are voting for the dismissal of the petitions.

CRUZ, J.:

It is a curious and almost incredible fact that at the hearing of these cases on July 7, 1994, the
lawyers who argued for the petitioners - two of them former presidents of the Senate and the
third also a member of that body - all asked this Court to look into the internal operations of their
Chamber and correct the irregularities they claimed had been committed there as well as in the
House of Representatives and in the bicameral conference committee.

While a member of the legislative would normally resist such intervention and invoke the
doctrine of separation of powers to protect Congress from what he would call judicial intrusion,
these counsel practically implored the Court to examine the questioned proceedings and to this
end go beyond the journals of each House, scrutinize the minutes of the committee, and
investigate all other matters relating to the passage of the bill (or bills) that eventually became
R.A. No. 7716.

In effect, the petitioners would have us disregard the time-honored inhibitions laid down by the
Court upon itself in the landmark case of U.S. v. Pons (34 Phil. 725), where it refused to
consider extraneous evidence to disprove the recitals in the journals of the Philippine
Legislature that it had adjourned sine die at midnight of February 28, 1914. Although it was
generally known then that the special session had actually exceeded the deadline fixed by the
Governor-General in his proclamation, the Court chose to be guided solely by the legislative
journals, holding significantly as follows:

... From their very nature and object, the records of the legislature are as
important as those of the judiciary, and to inquire into the veracity of the journals
of the Philippine Legislature, when they are, as we have said, clear and explicit,
would be to violate both the letter and the spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate
powers and functions of the Legislature. But counsel in his argument says that
the public knows that the Assembly's clock was stopped on February 28, 1914, at
midnight and left so until the determination of the discussion of all pending
matters. Or, in other words, the hands of the clock were stayed in order to enable
the Assembly to effect an adjournment apparently within the fixed time by the
Governor's proclamation for the expiration of the special session, in direct
violation of the Act of Congress of July 1, 1902. If the clock was, in fact, stopped,
as here suggested, "the resultant evil might be slight as compared with that of
altering the probative force and character of legislative records, and making the
proof of legislative action depend upon uncertain oral evidence, liable to loss by
death or absence, and so imperfect on account of the treachery of memory.

... The journals say that the Legislature adjourned at 12 midnight on February 28,
1914. This settles the question, and the court did not err in declining to go
beyond the journals.
As one who has always respected the rationale of the separation of powers, I realize only too
well the serious implications of the relaxation of the doctrine except only for the weightiest of
reasons. The lowering of the barriers now dividing the three major branches of the government
could lead to individious incursions by one department into the exclusive domains of the other
departments to the detriment of the proper discharge of the functions assigned to each of them
by the Constitution.

Still, while acknowledging the value of tradition and the reasons for judicial non-interference
announced in Pons, I am not disinclined to take a second look at the ruling from a more
pragmatic viewpoint and to tear down, if we must, the iron curtain it has hung, perhaps
improvidently, around the proceedings of the legislature.

I am persuaded even now that where a specific procedure is fixed by the Constitution itself, it
should not suffice for Congress to simply say that the rules have been observed and flatly
consider the matter closed. It does not have to be as final as that. I would imagine that the
judiciary, and particularly this Court, should be able to verify that statement and determine for
itself, through the exercise of its own powers, if the Constitution has, indeed, been obeyed.

In fact, the Court had already said that the question of whether certain procedural rules have
been followed is justiciable rather than political because what is involved is the legality and not
the wisdom of the act in question. So we ruled in Sanidad v. Commission on Elections (73
SCRA 333) on the amendment of the Constitution; in Daza v. Singson (180 SCRA 496) on the
composition of the Commission on Appointments; and in the earlier case of Tañada v.
Cuenco (100 SCRA 1101) on the organization of the Senate Electoral Tribunal, among several
other cases.

By the same token, the ascertainment of whether a bill underwent the obligatory three readings
in both Houses of Congress should not be considered an invasion of the territory of the
legislature as this would not involve an inquiry into its discretion in approving the measure but
only the manner in which the measure was enacted.

These views may upset the conservatives among us who are most comfortable when they allow
themselves to be petrified by precedents instead of venturing into uncharted waters. To be sure,
there is much to be said of the wisdom of the past expressed by vanished judges talking to the
future. Via trita est tuttisima. Except when there is a need to revise them because of an altered
situation or an emergent idea, precedents should tell us that, indeed, the trodden path is the
safest path.

It could be that the altered situation has arrived to welcome the emergent idea. The jurisdiction
of this Court has been expanded by the Constitution, to possibly include the review the
petitioners would have us make of the congressional proceedings being questioned. Perhaps it
is also time to declare that the activities of Congress can no longer be smoke-screened in the
inviolate recitals of its journals to prevent examination of its sacrosanct records in the name of
the separation of powers.

But then again, perhaps all this is not yet necessary at this time and all these observations are
but wishful musings for a more activist judiciary. For I find that this is not even necessary, at
least for me, to leave the trodden path in the search for new adventures in the byways of the
law. The answer we seek, as I see it, is not far afield It seems to me that it can be found through
a study of the enrolled bill alone and that we do not have to go beyond that measure to
ascertain if R.A. No. 7716 has been validly enacted.

It is settled in this jurisdiction that in case of conflict between the enrolled bill and the legislative
journals, it is the former that should prevail except only as to matters that the Constitution
requires to be entered in the journals. (Mabanag v. Lopez Vito, 78 Phil. 1). These are the yeas
and nays on the final reading of a bill or on any question at the request of at least one-fifth of the
member of the House (Constitution, Art. VI, Sec. 16[4]), the objections of the President to a
vetoed bill or item (Ibid, Sec. 27 [1]), and the names of the members voting for or against the
overriding of his veto (Id. Section 27 [1]), The original of a bill is not specifically required by the
Constitution to be entered in the journals. Hence, on this particular manner, it is the recitals in
the enrolled bill and not in the journals that must control.

Article VI, Section 24, of the Constitution provides:

Sec. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.

The enrolled bill submitted to and later approved by the President of the Philippines as R.A. No.
7716 was signed by the President of the Senate and the Speaker of the House of
Representatives. It carried the following certification over the signatures of the Secretary of the
Senate and the Acting Secretary of the House of Representatives:

This Act which is a consolidation of House Bill No. 11197 and Senate Bill No.
11630 was finally passed by the House of Representative and the Senate on
April 27, 1994, and May 2, 1994.

Let us turn to Webster for the meaning of certain words,

To "originate" is "to bring into being; to create something (original); to invent; to begin; start."
The word "exclusively" means "excluding all others" and is derived from the word "exclusive,"
meaning "not shared or divided; sole; single." Applying these meanings, I would read Section 24
as saying that the bills mentioned therein must be brought into being, or created, or invented, or
begun or started, only or singly or by no other body than the house of Representatives.

According to the certification, R.A. No. 7716 "is a consolidation of House Bill No. 11197 and
Senate Bill No. 1630." Again giving the words used their natural and ordinary sense
conformably to an accepted canon of construction, I would read the word "consolidation" as a
"combination or merger" and derived from the word "consolidated," meaning "to combine into
one; merge; unite."

The two bills were separately introduced in their respective Chambers. Both retained their
independent existence until they reached the bicameral conference committee where they were
consolidated. It was this consolidated measure that was finally passed by Congress and
submitted to the President of the Philippines for his approval.

House Bill No. 11197 originated in the House of Representatives but this was not the bill that
eventually became R.A. No. 7716. The measure that was signed into law by President Ramos
was the consolidation of that bill and another bill, viz., Senate Bill No. 1630, which was
introduced in the Senate. The resultant enrolled bill thus did not originate exclusively in the
House of Representatives. The enrolled bill itself says that part of it (and it does not matter to
what extent) originated in the Senate.

It would have been different if the only participation of the Senate was in the amendment of the
measure that was originally proposed in the House of Representatives. But this was not the
case. The participation of the Senate was not in proposing or concurring with amendments that
would have been incorporated in House Bill No. 11197. Its participation was in originating its
own Senate Bill No. 1630, which was not embodied in but merged with House Bill No. 11197.

Senate Bill No. 1630 was not even an amendment by substitution, assuming this was
permissible. To "substitute" means "to take the place of; to put or use in place of another."
Senate Bill No. 1630 did not, upon its approval replace (and thus eliminate) House Bill No.
11197. Both bills retained their separate identities until they were joined or united into what
became the enrolled bill and ultimately R.A. No. 7716.

The certification in the enrolled bill says it all. It is clear that R.A. No. 7716 did not originate
exclusively in the House of Representatives.

To go back to my earlier observations, this conclusion does not require the reversal of U.S. vs.
Pons and an inquiry by this Court into the proceedings of the legislature beyond the recitals of
its journals. All we need to do is consider the certification in the enrolled bill and, without
entering the precincts of Congress, declare that by this own admission it has, indeed, not
complied with the Constitution.

While this Court respects the prerogatives of the other departments, it will not hesitate to rise to
its higher duty to require from them, if they go astray, full and strict compliance with the
fundamental law. Our fidelity to it must be total. There is no loftier principle in our democracy
than the supremacy of the Constitution, to which all must submit.

I vote to invalidate R.A. No. 7716 for violation of Article VI, Sec. 24, of the Constitution.

REGALADO, J.:

It would seem like an inconceivable irony that Republic Act No. 7716 which, so respondents
claim, was conceived by the collective wisdom of a bicameral Congress and crafted with
sedulous care by two branches of government should now be embroiled in challenges to its
validity for having been enacted in disregard of mandatory prescriptions of the Constitution
itself. Indeed, such impugnment by petitioners goes beyond merely the procedural flaws in the
parturition of the law. Creating and regulating as it does definite rights to property, but with its
own passage having been violative of explicit provisions of the organic law, even without going
into the intrinsic merits of the provisions of Republic Act No. 7716 its substantive invalidity is pro
facto necessarily entailed.

How it was legislated into its present statutory existence is not in serious dispute and need not
detain us except for a recital of some salient and relevant facts. The House of Representatives
passed House Bill No. 11197 1 on third reading on November 17, 1993 and, the following day, It
transmitted the same to the Senate for concurrence. On its part, the Senate approved Senate
Bill No. 1630 on second and third readings on March 24, 1994. It is important to note in this
regard that on March 22, 1994, said S.B. No. 1630 had been certified by President Fidel V.
Ramos for immediate enactment to meet a public emergency, that is, a growing budgetary
deficit. There was no such certification for H.B. No. 11197 although it was the initiating revenue
bill.

It is, therefore, not only a curious fact but, more importantly, an invalid procedure since that
Presidential certification was erroneously made for and confined to S.B. No. 1630 which was
indisputably a tax bill and, under the Constitution, could not validly originate in the Senate.
Whatever is claimed in favor of S.B. No. 1630 under the blessings of that certification, such as
its alleged exemption from the three separate readings requirement, is accordingly negated and
rendered inutile by the inefficacious nature of said certification as it could lawfully have been
issued only for a revenue measure originating exclusively from the lower House. To hold
otherwise would be to validate a Presidential certification of a bill initiated in the Senate despite
the Constitutional prohibition against its originating therefrom.

Equally of serious significance is the fact that S.B. No. 1630 was reported out in Committee
Report No. 349 submitted to the Senate on February 7, 1994 and approved by that body "in
substitution of S.B. No. 1129," while merely "taking into consideration P.S. No. 734 and H.B. No.
11197." 2 S.B. No. 1630, therefore, was never filed in substitution of either P.S. No. 734 or, more
emphatically, of H.B. No. 11197 as these two legislative issuances were merely taken account
of, at the most, as referential bases or materials.

This is not a play on misdirection for, in the first instance, the respondents assure us that H.B.
No. 11197 was actually the sole source of and started the whole legislative process which
culminated in Republic Act No. 7716. The participation of the Senate in enacting S.B. No. 1630
was, it is claimed, justified as it was merely in pursuance of its power to concur in or propose
amendments to H.B. No. 11197. Citing the 83-year old case of Flint vs. Stone Tracy Co., 3 it is
blithely announced that such power to amend includes an amendment by substitution, that is,
even the extent of substituting the entire H.B. No. 11197 by an altogether completely new
measure of Senate provenance. Ergo, so the justification goes, the Senate acted perfectly in
accordance with its amending power under Section 24, Article VI of the Constitution since it
merely proposed amendments through a bill allegedly prepared in advance.

This is a mode of argumentation which, by reason of factual inaccuracy and logical

implausibility, both astounds and confounds. For, it is of official record that S.B. No. 1630 was
filed, certified and enacted in substitution of S.B. No. 1129 which in itself was likewise in
derogation of the Constitutional prohibition against such initiation of a tax bill in the Senate. In
any event, S.B. No. 1630 was neither intended as a bill to be adopted by the Senate nor to be
referred to the bicameral conference committee as a substitute for H.B. No. 11197. These
indelible facts appearing in official documents cannot be erased by any amount of strained
convolutions or incredible pretensions that S.B. No. 1630 was supposedly enacted in
anticipation of H.B. No. 11197.

On that score alone, the invocation by the Solicitor General of the hoary concept of amendment
by substitution falls flat on its face. Worse, his concomitant citation of Flint to recover from that
prone position only succeeded in turning the same postulation over, this time supinely flat on its
back. As elsewhere noted by some colleagues, which I will just refers to briefly to avoid
duplication, respondents initially sought sanctuary in that doctrine supposedly laid down in Flint,
thus: "It has, in fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment." 4 (Italics supplied.) During the
interpellation by the writer at the oral argument held in these cases, the attention of the Solicitor
General was called to the fact that the amendment in Flint consisted only of a single item, that
its, the substitution of a corporate tax for an inheritance tax proposed in a general revenue bill;
and that the text of the decision therein nowhere contained the supposed doctrines he quoted
and ascribed to the court, as those were merely summations of arguments of counsel therein. It
is indeed a source of disappointment for us, but an admission of desperation on his part, that,
instead of making a clarification or a defense of his contention, the Solicitor General merely
reproduced all over again 5 the same quotations as they appeared in his original consolidated
comment, without venturing any explanation or justification.

The aforestated dissemblance, thus unmasked, has further undesirable implications on the
contentions advanced by respondents in their defense. For, even indulging respondents ex
gratia argumenti in their pretension that S.B. No. 1630 substituted or replaced H.B. No. 11197,
aside from muddling the issue of the true origination of the disputed law, this would further
enmesh respondents in a hopeless contradiction.

In a publication authorized by the Senate and from which the Solicitor General has liberally
quoted, it is reported as an accepted rule therein that "(a)n amendment by substitution when
approved takes the place of the principal bill. C.R. March 19, 1963." 6 Stated elsewise, the
principal bill is supplanted and goes out of actuality. Applied to the present situation, and
following respondents' submission that H.B. No. 11197 had been substituted or replaced in its
entirety, then in law it had no further existence for purposes of the subsequent stages of
legislation except, possibly, for referential data.

Now, the enrolled bill thereafter submitted to the President of the Philippines, signed by the
President of the Senate and the Speaker of the House of Representatives, carried this solemn
certification over the signatures of the respective secretaries of both chambers: "This Act which
is a consolidation of House Bill No. 11197 and Senate Bill No. 1630 was finally passed by the
House of Representatives and the Senate on April 27, 1994, and May 2, 1994." (Italics mine.) In
reliance thereon, the Chief Executive signed the same into law as Republic Act No. 7716.

The confusion to which the writer has already confessed is now compounded by that official text
of the aforequoted certification which speaks, and this cannot be a mere lapsus calami, of
two independent and existing bills (one of them being H.B. No. 11197) which were consolidated
to produce the enrolled bill. In parliamentary usage, to consolidate two bills, is to unite them into
one 7 and which, in the case at bar, necessarily assumes that H.B. No. 11197 never became
legally inexistent. But did not the Solicitor General, under the theory of amendment by
substitution of the entire H.B. No. 11197 by S.B. No. 1630, thereby premise the same upon the
replacement, hence the total elimination from the legislative process, of H.B. 11197?

It results, therefore, that to prove compliance with the requirement for the exclusive origination
of H.B. No. 11197, two alternative but inconsistent theories had to be espoused and defended
by respondents' counsel. To justify the introduction and passage of S.B. No. 1630 in the Senate,
it was supposedly enacted only as an amendment by substitution, hence on that theory H.B. No.
11197 had to be considered as displaced and terminated from its role or existence. Yet, likewise
for the same purpose but this time on the theory of origination by consolidation, H.B. No. 11197
had to be resuscitated so it could be united or merged with S.B. No. 1630. This latter alternative
theory, unfortunately, also exacerbates the constitutional defect for then it is an admission of
a dual origination of the two tax bills, each respectively initiated in and coming from the lower
and upper chambers of Congress.

Parenthetically, it was also this writer who pointedly brought this baffling situation to the
attention of the Solicitor General during the aforesaid oral argument, to the extent of reading
aloud the certification in full. We had hoped thereby to be clarified on these vital issue in
respondents' projected memorandum, but we have not been favored with an explanation
unraveling this delimma. Verily, by passing sub silentio on these intriguing submissions,
respondents have wreaked havoc on both logic and law just to gloss over their non-compliance
with the Constitutional mandate for exclusive origination of a revenue bill. The procedure
required therefor, we emphatically add, can be satisfied only by complete and strict compliance
since this is laid down by the Constitution itself and not by a mere statute.

This writer consequently agrees with the clearly tenable proposition of petitioners that when the
Senate passed and approved S.B. No. 1630, had it certified by the Chief Executive, and
thereafter caused its consideration by the bicameral conference committee in total substitution
of H.B. No. 11197, it clearly and deliberately violated the requirements of the Constitution not
only in the origination of the bill but in the very enactment of Republic Act No. 7716. Contrarily,
the shifting sands of inconsistency in the arguments adduced for respondents betray such lack
of intellectual rectitude as to give the impression of being mere rhetorics in defense of the
indefensible.

We are told, however, that by our discoursing on the foregoing issues we are introducing into
non-justiciable areas long declared verboten by such time-honored doctrines as those on
political questions, the enrolled bill theory and the respect due to two co-equal and coordinate
branches of Government, all derived from the separation of powers inherent in republicanism.
We appreciate the lectures, but we are not exactly unaware of the teachings in U.S. vs.
Pons, 8 Mabanag, vs. Lopez Vito, 9 Casco Philippine Chemical Co.,. vs. Gimenez, etc., et
al., 10 Morals vs. Subido, etc., 11 and Philippine Judges Association, etc., et al. vs. Prado, etc., et
al., 12 on the one hand, and Tañada, et al. vs. Cuenco, et al., 13 Sanidad, et al., vs. Commission
on Elections, et al., 14 and Daza vs. Singson, et al., 15 on the other, to know which would be
applicable to the present controversy and which should be rejected.

But, first, a positional exordium. The writer of this opinion would be among the first to
acknowledge and enjoin not only courtesy to, but respect for, the official acts of the Executive
and Legislative departments, but only so long as the same are in accordance with or are
defensible under the fundamental charter and the statutory law. He would readily be numbered
in the ranks of those who would preach a reasoned sermon on the separation of powers, but
with the qualification that the same are not contained in tripartite compartments separated by
empermeable membranes. He also ascribes to the general validity of American constitutional
doctrines as a matter of historical and legal necessity, but not to the extent of being oblivious to
political changes or unmindful of the fallacy of undue generalization arising from myopic
disregard of the factual setting of each particular case.

These ruminations have likewise been articulated and dissected by my colleagues, hence it is
felt that the only issue which must be set aright in this dissenting opinion is the so-called
enrolled bill doctrine to which we are urged to cling with reptilian tenacity. It will be preliminarily
noted that the official certification appearing right on the face of Republic Act No. 7716 would
even render unnecessary any further judicial inquiry into the proceedings which transpired in the
two legislative chambers and, on a parody of tricameralism, in the bicameral conference
committee. Moreover, we have the excellent dissertations of some of my colleagues on these
matters, but respondents insist en contra that the congressional proceedings cannot properly be
inquired into by this Court. Such objection confirms a suppressive pattern aimed at sacrificing
the rule of law to the fiat of expediency.

Respondents thus emplaced on their battlements the pronouncement of this Court in the
aforecited case of Philippine Judges Association vs. Prado. 16 Their reliance thereon falls into
the same error committed by their seeking refuge in the Flint case, ante. which, as has earlier
been demonstrated (aside from the quotational misrepresentation), could not be on par with the
factual situation in the present case. Flint, to repeat, involved a mere amendment on a single
legislative item, that is, substituting the proposal therein of an inheritance tax by one on
corporate tax. Now, in their submission based on Philippine Judges Association, respondents
studiously avoid mention of the fact that the questioned insertion referred likewise to a single
item, that is, the repeal of the franking privilege thretofore granted to the judiciary. That both
cases cannot be equated with those at bar, considering the multitude of items challenged and
the plethora of constitutional violations involved, is too obvious to belabor. Legal advocacy and
judicial adjudication must have a becoming sense of qualitative proportion, instead of lapsing
into the discredited and maligned practice of yielding blind adherence to precedents.

The writer unqualifiedly affirms his respect for valid official acts of the two branches of
government and eschews any unnecessary intrusion into their operational management and
internal affairs. These, without doubt, are matters traditionally protected by the republican
principle of separation of powers. Where, however, there is an overriding necessity for judicial
intervention in light of the pervasive magnitude of the problems presented and the gravity of the
constitutional violations alleged, but this Court cannot perform its constitutional duty expressed
in Section 1, Article VIII of the Constitution unless it makes the inescapable inquiry, then the
confluence of such factors should compel an exception to the rule as an ultimate recourse. The
cases now before us present both the inevitable challenge and the inescapable exigency for
judicial review. For the Court to now shirk its bounden duty would not only project it as a citadel
of the timorous and the slothful, but could even undermine its raison d'etre as the highest and
ultimate tribunal.

Hence, this dissenting opinion has touched on events behind and which transpired prior to the
presentation of the enrolled bill for approval into law. The details of that law which resulted from
the legislative action followed by both houses of Congress, the substantive validity of whose
provisions and the procedural validity of which legislative process are here challenged as
unconstitutional, have been graphically presented by petitioners and admirably explained in the
respective opinions of my brethren. The writer concurs in the conclusions drawn therefrom and
rejects the contention that we have unjustifiably breached the dike of the enrolled bill doctrine.

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 contents and 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 are required to furnish
the evidence." 17

In fact, in Gwynn vs. Hardee, etc., et al., 18 the Supreme Court of Florida declared:
 (1) While the presumption is that the enrolled bill, as signed by the legislative
officers and filed with the secretary of state, is the bill as it passed, 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 said by 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 journals speak they
control, and against such proof the enrolled bill is not conclusive.'

More enlightening and apropos to the present controversy is the decision promulgated on May
13, 1980 by the Supreme Court of Kentucky in D & W Auto Supply, et al. vs. Department of
Revenue, et al., 19 pertinent exceprts 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 the so-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 the appropriate officers, to
determine if there are any defects.

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 declining to look behind
the law to determine the propriety of its enactment, the court enunciated three
reasons for adopting the enrolled bill rule. First, the court was reluctant to
scrutinize the processes of the legislature, an equal branch of government.
Second, reasons of convenience prevailed, which discouraged requiring the
legislature to preserve its records and anticipated considerable complex litigation
if the court ruled otherwise. Third, the court acknowledged the poor record-
keeping abilities of the General Assembly and expressed a preference for
accepting the final bill as enrolled, rather than opening up the records of the
legislature. ... .

xxx xxx xxx

Nowhere has the rule been adopted without reason, or as a result of judicial
whim. There are four historical bases for the doctrine. (1) An enrolled bill 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 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, 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 has not been
without its critics. From an examination of cases and treaties, we can summarize
the criticisms as follows: (1) Artificial presumptions, especially conclusive ones,
are not favored. (2) Such a rule frequently (as in the present case) produces
results which 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 of the courts to seek the truth and to provide a remedy for a
wrong committed by any branch of government. In light 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 doctrine of stare decisis.
The maxim is "Stare decisis et non quieta movere," which simply suggests that
we stand by precedents and not 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 stated in Daniel's Adm'r v. Hoofnel, 287 Ky 834, 155 S.W. 2d 469, 471-72
(1941) (citations omitted):

The force of the rule depends upon the nature of the question to be decided and
the extent of the disturbance of rights and practices which a change in the
interpretation of the law or the course of judicial opinions may create. Cogent
considerations are whether there is clear error and urgent reasons 'for neither
justice nor wisdom requires a court to go from one doubtful 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 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 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 mindful 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 or presumption that so provides.

Lastly, we address the premises that the equality of the various branches of
government requires that we shut our eyes to constitutional failings and other
errors of our coparceners in government. We simply do not agree. Section 26 of
the Kentucky Constitution provides that any law contrary to the constitution is
'void.' The proper exercise of judicial authority requires us to recognize any law
which is unconstitutional and to declare it void. Without belaboring 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
of government - are brought to light and corrected. To countenance an artificial
rule of law that silences our voices when confronted with violations of our
constitution is not acceptable to this court.

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

We therefore overrule Lafferty v. Huffman and all other cases following the so-

called enrolled bill doctrine, to the extent that there is no longer a conclusive
presumption that an enrolled bill is valid. ... (Italics mine.)

Undeniably, the value-added tax system may have its own merits to commend its continued
adoption, and the proposed widening of its base could achieve laudable governmental
objectives if properly formulated and conscientiously implemented. We would like to believe,
however, that ours is not only an enlightened democracy nurtured by a policy of transparency
but one where the edicts of the fundamental law are sacrosanct for all, barring none. While the
realization of the lofty ends of this administration should indeed be the devout wish of all,
likewise barring none, it can never be justified by methods which, even if unintended, are
suggestive of Machiavellism.

Accordingly, I vote to grant the instant petitions and to invalidate Republic Act No. 7716 for
having been enacted in violation of Section 24, Article VI of the Constitution.

DAVIDE, JR., J.:

The legislative history of R.A. No. 7716, as highlighted in the Consolidated Memorandum for the
public respondents submitted by the Office of the Solicitor General, demonstrates beyond doubt
that it was passed in violation or deliberate disregard of mandatory provisions of the Constitution
and of the rules of both chambers of Congress relating to the enactment of bills.

I therefore vote to strike down R.A. No. 7716 as unconstitutional and as having been enacted
with grave abuse of discretion.
The Constitution provides for a bicameral Congress. Therefore, no bill can be enacted into law
unless it is approved by both chambers -- the Senate and the House of Representatives
(hereinafter House). Otherwise stated, each chamber may propose and approve a bill, but until
it is submitted to the other chamber and passed by the latter, it cannot be submitted to the
President for its approval into law.

Paragraph 2, Section 26, Article VI of the Constitution provides:

No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the journal.

The "three readings" refers to the three readings in both chambers.

There are, however, bills which must originate exclusively in the House. Section 24, Article VI of
the Constitution enumerates them:

SEC. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the
public debt, bills of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.

Webster's Third New International Dictionary 1 defines originate as follows:

vt 1: to cause the beginning of: give rise to: INITIATE ... 2. to start (a person or
thing) on a course or journey ... vi: to take or have origin: be derived: ARISE,
BEGIN, START ...

Black's Law Dictionary 2 defines the word exclusively in this wise:

Apart from all others; only; solely; substantially all or for the greater part. To the
exclusion of all others; without admission of others to participation; in a manner
to exclude.

In City Mayor vs. The Chief of Philippine Constabulary, @= 3 this Court said:

The term 'exclusive' in its usual and generally accepted sense, means possessed
to the exclusion of others; appertaining to the subject alone, not including,
admitting or pertaining to another or others, undivided, sole. (15 Words and
Phrases, p. 510, citing Mitchel v. Tulsa Water, Light, Heat and Power Co., 95 P.
961, 21 Okl. 243; and p. 513, citing Commonwealth v. Superintendent of House
of Correction, 64 Pa. Super. 613, 615).
Indisputably then, only the House can cause the beginning or initiate the passage of any
appropriation, revenue, or tarriff bill, any bill increasing the public debt, any bill of local
application, or any private bill. The Senate can only "propose or concur with amendments."

Under the Rules of the Senate, the first reading is the reading of the title of the bill and its
referral to the corresponding committee; the second reading consists of the reading of the bill in
the form recommended by the corresponding committee; and the third reading is the reading of
the bill in the form it will be after approval on second reading. 4 During the second reading, the
following takes place;

(1) Second reading of the bill;

(2) Sponsorship by the Committee Chairman or any member designated by the

corresponding committee;

(3) If a debate ensues, turns for and against the bill shall be taken alternately;

(4) The sponsor of the bill closes the debate;

(5) After the close of the debate, the period of amendments follows:

(6) Then, after the period of amendments is closed, the voting the bill on second
reading. 5

After approval on second readings, printed copies thereof in its final form shall be distributed to
the Members of the Senate at least three days prior to the third reading, the final vote shall be
taken and the yeas and nays shall be entered in the Journal. 6

Under the Rules of the House, the first reading of a bill consists of a reading of the number, title,
and author followed by the referral to the appropriate committees; 7 the second reading consists
of the reading in full of the bill with the amendments proposed by the committee, it any; 8 and
the third reading is the reading of the bill in the form as approved on second reading and takes
place only after printed copies thereof in its final form have been distributed to the Members at
least three days before, unless the bill is certified. 9 At the second reading, the following takes
place:

(1) Reading of the bill;

(2) Sponsorship;

3) Debates;

(4) Period of Amendments; and

(5) Voting on Second Reading. 10

At the third reading, the votes shall be taken immediately and the yeas and nays entered in the
Journal. 11
Clearly, whether in the Senate or in the House, every bill must pass the three readings on
separate days, except when the bill is certified. Amendments to the bill on third reading are
constitutionally prohibited. 12

After its passage by one chamber, the bill should then be transmitted to the other chamber for
its concurrence. Section 83, Rule XIV of the Rules of the House expressly provides:

SEC. 83. Transmittal to Senate. -- The Secretary General, without need of

express order, shall transmit to the Senate for its concurrence all the bills and
joint or concurrent resolutions approved by the House or the amendments of the
House to the bills or resolutions of the Senate, or if amendments of the Senate to
bills of the House are accepted, he shall forthwith notify the Senate of the action
taken.

Simplified, this rule means that:

1. As to a bill originating in the House:

(a) Upon its approval by the House, the bill shall be transmitted to the Senate;

(b) The Senate may approve it with or without amendments;

(c) The Senate returns the bill to the House;

(d) The House may accept the Senate amendments; if it does not, the Secretary
General shall notify the Senate of that action. As hereinafter be shown, a request
for conference shall then be in order.

2. As to bills originating in the Senate;

(a) Upon its approval by the Senate, the bill shall be transmitted to the House;

(b) The House may approve it with or without amendments;

(c) The House then returns it to the Senate, informing it of the action taken;

(d) The Senate may accept the House amendements; if it does not, it shall notify
the House and make a request for conference.

The transmitted bill shall then pass three readings in the other chamber on separate days.
Section 84, Rule XIV of the Rules of the House states:

SEC. 84. Bills from the Senate. -- The bills, resolutions and communications of
the Senate shall be referred to the corresponding committee in the same manner
as bills presented by Members of the House.

and Section 51, Rule XXII of the Rules of the Senate provides:
 SEC. 51. Prior to their final approval, bills and joint resolutions shall be read at
least three times." It is only when the period of disagreement is reached, i.e.,
amendments proposed by one chamber to a bill originating from the other are not
accepted by the latter, that a request for conference is made or is in order. The
request for conference is specifically covered by Section 26, Rule XI of the Rules
of the Senate which reads:

It is only when the period of disagreement is reached, i.e., amended proposed by one chamber

to a bill originating from the other are not accepted by their latter, that a request for conference
is made or is in order. The request for conference is specifically covered by Section 26, Rule XII
of the Rules of the Senate which reads:

SEC. 26. In the event that the Senate does not agree with the House of
Representatives on the provision of any bill or joint resolution, the differences
shall be settled by a conference committee of both Houses which shall meet
within ten days after its composition.

and Section 85, Rule XIV of the Rules of the House which reads:

SEC. 85. Conference Committee Reports. -- In the event that the House does not
agree with the Senate on the amendments to any bill or joint resolution, the
differences may be settled by conference committees of both Chambers.

The foregoing provisions of the Constitution and the Rules of both chambers of Congress are
mandatory.

In his Treatise On the Constitutional Limitations, 13 more particularly on enactment of bill, Cooley

states:

Where, for an instance, the legislative power is to be exercised by two houses,

and by settled and well-understood parliamentary law these two houses are to
hold separate sessions for their deliberations, and the determination of the one
upon a proposes law is to be submitted to the separate determination of the
other, the constitution, in providing for two houses, has evidently spoken in
reference to this settled custom, incorporating it as a rule of constitutional
interpretation; so that it would require no prohibitory clause to forbid the two
houses from combining in one, and jointly enacting laws by the vote of a majority
of all. All those rules which are of the essentials of law-making must be observed
and followed; and it is only the customary rules of order and routine, such as in
every deliberative body are always understood to be under its control, and
subject to constant change at its will, that the constitution can be understood to
have left as matters of discretion, to be established, modified, or abolished by the
bodies for whose government in non-essential matters they exist.

In respect of appropriation, revenue, or tariff bills, bills increasing the public debt, bills of local
application, or private bills, the return thereof to the House after the Senate shall have
"proposed or concurred with amendments" for the former either to accept or reject the
amendments would not only be in conformity with the foregoing rules but is also implicit from
Section 24 of Article VI.
With the foregoing as our guiding light, I shall now show the violations of the Constitution and of
the Rules of the Senate and of the House in the passage of R.A. No. 7716.

VIOLATIONS OF SECTION 24, ARTICLE VI

OF THE CONSTITUTION:

First violation. -- Since R.A. No. 7716 is a revenue measure, it must originate exclusively in the
House -- not in the Senate. As correctly asserted by petitioner Tolentino, on the face of the
enrolled copy of R.A. No. 7716, it is a "CONSOLIDATION OF HOUSE BILL NO. 11197 AND
SENATE BILL NO. 1630." In short, it is an illicit marriage of a bill which originated in the House
and a bill which originated in the Senate. Therefore, R.A. No. 7716 did not originate
exclusively in the House.

The only bill which could serve as a valid basis for R.A. No. 7716 is House Bill (HB) No. 11197.
This bill, which is the substitute bill recommended by the House Committee on Ways and
Means in substitution of House Bills Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9397,
10012, and 10100, and covered by its Committee Report No. 367, 14 was approved on third
reading by the House on 17 November 1993. 15 Interestingly, HB No. 9210, 16 which was filed by
Representative Exequiel B. Javier on 19 May 1993, was certified by the President in his letter to
Speaker Jose de Venecia, Jr. of 1 June 1993. 17 Yet, HB No. 11197, which substituted HB No.
9210 and the others above-stated, was not. Its certification seemed to have been entirely
forgotten.

On 18 November 1993, the Secretary-General of the House, pursuant to Section 83, Rule XIV
of the Rules of the House, transmitted to the President of the Senate HB No. 11197 and
requested the concurrence of the Senate therewith. 18

However, HB No. 11197 had passed only its first reading in that Senate by its referral to its
Committee on Ways and Means. That Committee never deliberated on HB No. 11197 as it
should have. It acted only on Senate Bill (SB) No. 1129 19 introduced by Senator Ernesto F.
Herrera on 1 March 1993. It then prepared and proposed SB No. 1630, and in its Committee
Report No. 349 20 which was submitted to the Senate on 7 February 1994, 21 it recommended
that SB No. 1630 be approved "in substitution of S.B. No. 1129, taking into consideration P.S.
Res. No. 734 and H.B. No. 11197." 22 It must be carefully noted that SB No. 1630 was proposed
and submitted for approval by the Senate in SUBSTITUTION of SB No. 1129, and not HB No.
11197. Obviously, the principal measure which the Committee deliberated on and acted upon
was SB No. 1129 and not HB No. 11197. The latter, instead of being the only measure to be
taken up, deliberated upon, and reported back to the Senate for its consideration on second
reading and, eventually, on third reading, was, at the most, merely given by the Committee a
passing glance.

This specific unequivocal action of the Senate Committee on Ways and Means, i.e., proposing
and recommending approval of SB No. 1630 as a substitute for or in substitution of SB No. 1129
demolishes at once the thesis of the Solicitor General that:

Assuming that SB 1630 is distinct from HB 11197, amendment by substitution is

within the purview of Section 24, Article VI of the Constitution.

because, according to him, (a) "Section 68, Rule XXIX of the Rules of the Senate authorizes an
amendment by substitution and the only condition required is that "the text thereof is submitted
in writing'; and (b) '[I]n Flint vs. Stone Tracy Co. (220 U.S. 107) the United Stated Supreme
Court, interpreting the provision in the United States Constitution similar to Section 24, Article VI
of the Philippine Constitution, stated that the power of the Senate to amend a revenue bill
includes substitution of an entirely new measure for the one originally proposed by the House of
Representatives.'" 23

This thesis is utterly without merit. In the first place, it reads into the Committee Report
something which it had not contemplated, that is, to propose SB No. 1630 in substitution of HB
No. 11197; or speculates that the Committee may have committed an error in stating that it is
SB No. 1129, and not HB No. 11197, which is to be substituted by SB No. 1630. Either, of
course, is unwarranted because the words of the Report, solemnly signed by the Chairman,
Vice-Chairman (who dissented), seven members, and three ex-officio members, 24 leave no
room for doubt that although SB No. 1129, P.S. Res No. 734, and HB No. 11197 were referred
to and considered by the Committee, it had prepared the attached SB No. 1630 which it
recommends for approval "in substitution of S.B. No. 11197, taking into consideration P.S. No.
734 and H.B. No. 11197 with Senators Herrera, Angara, Romulo, Sotto, Ople and Shahani as
authors." To do as suggested would be to substitute the judgment of the Committee with
another that is completely inconsistent with it, or, simply, to capriciously ignore the facts.

In the second place, the Office of the Solicitor General intentionally made it appear, to mislead
rather than to persuade us, that in Flint vs. Stone Tracy Co. 25 The U.S. Supreme Court ruled,
as quoted by it in the Consolidated Memorandum for Respondents, as follows: 26

The Senate has the power to amend a revenue bill. This power to amend is not
confined to the elimination of provisions contained in the original act, but
embraces as well the addition of such provisions thereto as may render the
original act satisfactory to the body which is called upon to support it. It has, in
fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.

xxx xxx xxx

It is contended in the first place that this section of the act is unconstitutional,
because it is a revenue measure, and originated in the Senate in violation of
Section 7 of article 1 of the Constitution, providing that 'all bills for raising revenue
shall originate in the House of Representatives, but the Senate may propose or
concur with the amendments, as on other bills.'

The first part is not a statement of the Court, but a summary of the arguments of counsel in one
of the companion cases (No. 425, entitled, "Gay vs. Baltic Mining Co."). The second part is the
second paragraph of the opinion of the Court delivered by Mr. Justice Day. The
misrepresentation that the first part is a statement of the Court is highly contemptuous. To show
such deliberate misrepresentation, it is well to quote what actually are found in 55 L.Ed. 408,
410, to wit:

Messrs. Charles A. Snow and Joseph H. Knight filed a brief for appellees in No.
425:

xxx xxx xxx

 The Senate has the power to amend a revenue bill. This power to amend is not
confined to the elimination of provisions contained in the original act, but
embraces as well the addition of such provisions thereto as may render the
original act satisfactory to the body which is called upon to support it. It has, in
fact, been held that the substitution of an entirely new measure for the one
originally proposed can be supported as a valid amendment.

Brake v. Collison, 122 Fed. 722.

Mr. James L. Quackenbush filed a statement for appellees in No. 442.

Solicitor General Lehmann (by special leave) argued the cause for the United
States on reargument.

Mr. Justice Day delivered the opinion of the court:

These cases involve the constitutional validity of 38 of the act of Congress

approved August 5, 1909, known as 'the corporation tax' law. 36 Stat. at L. 11,
112-117, chap. 6, U.S. Comp. Stat. Supp. 1909, pp. 659, 844-849.

It is contended in the first place that this section of the act is unconstitutional,
because it is a revenue measure, and originated in the Senate in violation of 7 of
article 1 of the Constitution, providing the 'all bills for raising revenue shall
originate in the House of Representatives, but the Senate may propose or concur
with the amendments, as on other bills.' The history of the act is contained in the
government's brief, and is accepted as correct, no objection being made to its
accuracy.

This statement shows that the tariff bill of which the section under consideration
is a part, originated in the House of Representatives, and was there a general bill
for the collection of revenue. As originally introduced, it contained a plan of
inheritance taxation. In the Senate the proposed tax was removed from the bill,
and the corporation tax, in a measure, substituted therefor. The bill having
properly originated in the House, we perceive no reason in the constitutional
provision relied upon why it may not be amended in the Senate in the manner
which it was in this case. The amendment was germane to the subject-matter of
the bill, and not beyond the power of the Senate to propose. (Italics supplied)

xxx xxx xxx

As shown above, the underlined portions were deliberately omitted in the quotation made by the
Office of the Solicitor General.

In the third place, a Senate amendment by substitution with an entirely new bill of a bill, which
under Section 24, Article VI of the Constitution can only originate exclusively in the House, is not
authorized by said Section 24. Flint vs. Stone Tracy Co. cannot be invoked in favor of such a
view. As pointed out by Mr. Justice Florenz D. Regalado during the oral arguments of these
cases and during the initial deliberations thereon by the Court, Flint involves a Senate
amendment to a revenue bill which, under the United States Constitution, should originate from
the House of Representatives. The amendment consisted of the substitution of a corporation tax
in lieu of the plan of inheritance taxation contained in a general bill for the collection of revenue
as it came from the House of Representatives where the bill originated. The constitutional
provision in question is Section 7, Article I of the United States Constitution which reads:

Section 7. Bills and Resolutions. -- All Bills for raising Revenue shall originate in
the House of Representatives; but the Senate may propose or concur with
Amendments, as on other Bills.

This provision, contrary to the misleading claim of the Solicitor General, is not similar to Section
24, Article VI of our Constitution, which for easy comparison is hereunder quoted again:

All appropriation, revenue or tariff bills, bills authorizing increase of the public
debt, bills of local application, and private bills shall originate exclusively in the
House of Representatives, but the Senate may propose or concur with
amendments.

Note that in the former the word exclusively does not appear. And, in the latter, the phrase "as
on other Bill," which is found in the former, does not appear. These are very significant in
determining the authority of the upper chamber over the bills enumerated in Section 24. Since
the origination is not exclusively vested in the House of Representatives of the United States,
the Senate's authority to propose or concur with amendments is necessarily broader. That
broader authority is further confirmed by the phrase "as on other Bills," i.e., its power to propose
or concur with amendments thereon is the same as in ordinary bills. The absence of this phrase
in our Constitution was clearly intended to restrict or limit the Philippine Senate's power to
propose or concur with amendments. In the light of the exclusivity of origination and the
absence of the phrase "as on other Bills," the Philippine Senate cannot amend by substitution
with an entirely new bill of its own any bill covered by Section 24 of Article VI which the House of
Representatives transmitted to it because such substitution would indirectly violate Section 24.

These obvious substantive differences between Section 7, Article I of the U.S. Constitution and
Section 24, Article VI of our Constitution are enough reasons why this Court should neither
allow itself to be misled by Flint vs. Stone nor be awed by Rainey vs. United States 27 and the
opinion of Messrs. Ogg and Ray 28 which the majority cites to support the view that the power of
the U.S. Senate to amend a revenue measure is unlimited. Rainey concerns the Tariff Act of
1909 of the United States of America and specifically involved was its Section 37 which was an
amendment introduced by the U.S. Senate. It was claimed by the petitioners that the said
section is a revenue measure which should originate in the House of Representatives. The U.S.
Supreme Court, however, adopted and approved the finding of the court a quo that:

the section in question is not void as a bill for raising revenue originating in the
Senate, and not in the House of Representatives. It appears that the section was
proposed by the Senate as an amendment to a bill for raising revenue which
originated in the House. That is sufficient.

Messrs. Ogg and Ray, who are professors emeritus of political science, based their statement
not even on a case decided by the U.S. Supreme Court but on their perception of what Section
7, Article I of the U.S. Constitution permits. In the tenth edition (1951) of their work, they state:

Any bill may make its first appearance in either house, except only that bills for
raising revenue are required by the constitution to 'originate' in the House of
 Representatives. Indeed, through its right to amend revenue bills, even to the
extent of substituting new ones, the Senate may, in effect, originate them also. 29

Their "in effect" conclusion is, of course, logically correct because the word exclusively does not
appear in said Section 7, Article I of the U.S. Constitution.

Neither can I find myself in agreement with the view of the majority that the Constitution does
not prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from
the House so long as action by the Senate as a body is withheld pending receipt of the House
bill, thereby stating, in effect, that S.B. No. 1129 was such an anticipatory substitute bill, which,
nevertheless, does not seem to have been considered by the Senate except only after its
receipt of H.B. No. 11179 on 23 November 1993 when the process of legislation in respect of it
began with a referral to the Senate Committee on Ways and Means. Firstly, to say that the
Constitution does not prohibit it is to render meaningless Section 24 of Article VI or to sanction
its blatant disregard through the simple expedient of filing in the Senate of a so-called
anticipatory substitute bill. Secondly, it suggests that S.B. No. 1129 was filed as an anticipatory
measure to substitute for H.B. No. 11179. This is a speculation which even the author of S.B.
No. 1129 may not have indulged in. S.B. No. 1129 was filed in the Senate by Senator Herrera
on 1 March 1993. H.B. No. 11197 was approved by the House on third reading only on 17
November 1993. Frankly, I cannot believe that Senator Herrera was able to prophesy that the
House would pass any VAT bill, much less to know its provisions. That "it does not seem that
the Senate even considered" the latter not until after its receipt of H.B. No. 11179 is another
speculation. As stated earlier, S.B. No. 1129 was filed in the Senate on 1 March 1993, while
H.B. No. 11197 was transmitted to the Senate only on 18 November 1993. There is no evidence
on record to show that both were referred to the Senate Committee on Ways and Means at the
same time. Finally, in respect of H.B. No. 11197, its legislative process did not begin with its
referral to the Senate's Ways and Means Committee. It began upon its filing, as a Committee
Bill of the House of Committee on Ways and Means, in the House.

Second violation. -- Since SB No. 1129 is a revenue measure, it could not even be validly
introduced or initiated in the Senate. It follows too, that the Senate cannot validly act thereon.

Third violation. -- Since SB No. 1129 could not have been validly introduced in the Senate and
could not have been validly acted on by the Senate, then it cannot be substituted by another
revenue measure, SB No. 1630, which the Senate Committee on Ways and Means introduced
in substitution of SB No. 1129. The filing or introduction in the Senate of SB No. 1630 also
violated Section 24, Article VI of the Constitution.

VIOLATIONS OF SECTION 26(2), ARTICLE VI

OF THE CONSTITUTION:

First violation. -- The Senate, despite its lack of constitutional authority to consider SB No. 1630
or SB No. 1129 which the former substituted, opened deliberations on second reading of SB No.
1630 on 8 February 1994. On 24 March 1994, the Senate approved it on second reading and
on third reading. 30 That approval on the same day violated Section 26(2), Article VI of the
Constitution. The justification therefor was that on 24 February 1994 the President certified to
"the necessity of the enactment of SB No. 1630 ... to meet a public emergency." 31

I submit, however, that the Presidential certification is void ab initio not necessarily for the
reason adduced by petitioner Kilosbayan, Inc., but because it was addressed to the Senate for a
bill which is prohibited from originating therein. The only bill which could be properly certified on
permissible constitutional grounds even if it had already been transmitted to the Senate is HB
No. 11197. As earlier observed, this was not so certified, although HB No. 9210 (one of those
consolidated into HB No. 11197) was certified on 1 June 1993. 32

Also, the certification of SB No. 1630 cannot, by any stretch of the imagination, be extended to
HB No. 11197 because SB No. 1630 did not substitute HB No. 11197 but SB No. 1129.

Considering that the certification of SB No. 1630 is void, its approval on second and third
readings in one day violated Section 26(2), Article VI of the Constitution.

Second violation. -- It further appears that on 24 June 1994, after the approval of SB No. 1630,
the Secretary of the Senate, upon directive of the Senate President, formally notified the House
Speaker of the Senate's approval thereof and its request for a bicameral conference "in view of
the disagreeing provisions of said bill and House Bill No. 11197." 33

It must be stressed again that HB No. 11197 was never submitted for or acted on second and
third readings in the Senate, and SB No. 1630 was never sent to the House for its concurrence.
Elsewise stated, both were only half-way through the legislative mill. Their submission to a
conference committee was not only anomalously premature, but violate of the constitutional rule
on three readings.

The suggestion that SB No. 1630 was not required to be submitted to the House for otherwise
the procedure would be endless, is unacceptable for, firstly, it violates Section 26, Rule XII of
the Rules of the Senate and Section 85, Rule XIV of the Rules of the House, and, secondly, it is
never endless. If the chamber of origin refuses to accept the amendments of the other chamber,
the request for conference shall be made.

VIOLATIONS OF THE RULES OF BOTH CHAMBERS;

GRAVE ABUSE OF DISCRETION.

The erroneous referral to the conference committee needs further discussion. Since S.B. No.
1630 was not a substitute bill for H.B. No. 11197 but for S.B. No. 1129, it (S.B. No. 1630)
remained a bill which originated in the Senate. Even assuming arguendo that it could be validly
initiated in the Senate, it should have been first transmitted to the House where it would undergo
three readings. On the other hand, since HB No. 11197 was never acted upon by the Senate on
second and third readings, no differences or inconsistencies could as yet arise so as to warrant
a request for a conference. It should be noted that under Section 83, Rule XIV of the Rules of
the House, it is only when the Senate shall have approved with amendments HB no. 11197 and
the House declines to accept the amendments after having been notified thereof that the
request for a conference may be made by the House, not by the Senate. Conversely, the
Senate's request for a conference would only be proper if, following the transmittal of SB No.
1630 to the House, it was approved by the latter with amendments but the Senate rejected the
amendments.

Indisputably then, when the request for a bicameral conference was made by the Senate, SB
No. 1630 was not yet transmitted to the House for consideration on three readings and HB No.
11197 was still in the Senate awaiting consideration on second and third readings. Their referral
to the bicameral conference committee was palpably premature and, in so doing, both the
Senate and the House acted without authority or with grave abuse of discretion. Nothing, and
absolutely nothing, could have been validly acted upon by the bicameral conference committee.

GRAVE ABUSE OF DISCRETION COMMITTED BY

THE BICAMERAL CONFERENCE COMMITTEE.

Serious irregularities amounting to lack of jurisdiction or grave abuse of discretion were

committed by the bicameral conference committee.

First, it assumed, and took for granted that SB No. 1630 could validly originate in the Senate.
This assumption is erroneous.

Second, it assumed that HB No. 11197 and SB No. 1630 had properly passed both chambers of
Congress and were properly and regularly submitted to it. As earlier discussed, the assumption
is unfounded in fact.

Third, per the bicameral conference committee's proceedings of 19 April 1994, Representative
Exequiel Javier, Chairman of the panel from the House, initially suggested that HB No. 11197
should be the "frame of reference," because it is a revenue measure, to which Senator Ernesto
Maceda concurred. However, after an incompletely recorded reaction of Senator Ernesto
Herrera, Chairman of the Senate panel, Representative Javier seemed to agree that "all
amendments will be coming from the Senate." The issue of what should be the "frame of
reference" does not appear to have been resolved. These facts are recorded in this wise, as
quoted in the Consolidated Memorandum for Respondents: 34

CHAIRMAN JAVIER.

First of all, what would be the basis, no, or framework para huwag naman
mawala yung personality namin dito sa bicameral, no, because the bill originates
from the House because this is a revenue bill, so we would just want to ask, we
make the House Bill as the frame of reference, and then everything will just be
inserted?

HON. MACEDA.

Yes. That's true for every revenue measure. There's no other way. The House
Bill has got to be the base. Of course, for the record, we know that this is an
administration; this is certified by the President and I was about to put into the
records as I am saying now that your problem about the impact on prices on the
people was already decided when the President and the administration sent this
to us and certified it. They have already gotten over that political implication of
this bill and the economic impact on prices.

CHAIRMAN HERRERA.

Yung concern mo about the bill as the reference in this discussion is something
that we can just ...

CHAIRMAN JAVIER.
 We will just ... all the amendments will be coming from the Senate.

(BICAMERAL CONFERENCE ON MAJOR DIFFERENCES BETWEEN HB NO.

11197 AND SB NO. 1630 [Cte. on Ways & Means] APRIL 19, 1994, II-6 and II-7;
Italics supplied)

These exchanges would suggest that Representative Javier had wanted HB No. 11197 to be
the principal measure on which reconciliation of the differences should be based. However,
since the Senate did not act on this Bill on second and third readings because its Committee on
Ways and Means did not deliberate on it but instead proposed SB No. 1630 in substitution of SB
No. 1129, the suggestion has no factual basis. Then, when finally he agreed that "all
amendments will be coming from the Senate," he in fact withdrew the former suggestion and
agreed that SB No. 1630, which is the Senate version of the Value Added Tax (VAT) measure,
should be the "frame of reference." But then SB No. 1630 was never transmitted to the House
for the latter's concurrence. Hence, it cannot serve as the "frame of reference" or as the basis
for deliberation. The posture taken by Representative Javier also indicates that SB No. 1630
should be taken as the amendment to HB No. 11197. This, too, is unfounded because SB No.
1630 was not proposed in substitution of HB No. 11197.

Since SB No. 1630 did not pass three readings in the House and HB No. 11197 did not pass
second and third readings in the Senate, it logically follows that no disagreeing provisions had
as yet arisen. The bicameral conference committee erroneously assumed the contrary.

Even granting arguendo that both HB No. 11197 and SB No. 1630 had been validly approved
by both chambers of Congress and validly referred to the bicameral conference committee, the
latter had very limited authority thereon. It was created "in view of the disagreeing provisions of"
the two bills. 35 Its duty was limited to the reconciliation of disagreeing provisions or the
resolution of differences or inconsistencies. The committee recognized that limited authority in
the opening paragraph of its Report 36 when it said:

The Conference Committee on the disagreeing provisions of House Bill No.

11197 ... and Senate Bill No. 1630 ... .

Under such limited authority, it could only either (a) restore, wholly or partly, the specific
provisions of HB No. 11197 amended by SB No. 1630, (b) sustain, wholly or partly, the Senate's
amendments, or (c) by way of a compromise, to agree that neither provisions in HB No. 11197
amended by the Senate nor the latter's amendments thereto be carried into the final form of the
former.

But as pointed out by petitioners Senator Raul Roco and Kilosbayan, Inc., the bicameral
conference committee not only struck out non-disagreeing provisions of HB No. 11197 and SB
No. 1630, i.e., provisions where both bills are in full agreement; it added more activities or
transactions to be covered by VAT, which were not within the contemplation of both bills.

Since both HB No. 11197 and SB No. 1630 were still half-cooked in the legislative vat, and were
not ready for referral to a conference, the bicameral conference committee clearly acted without
jurisdiction or with grave abuse of discretion when it consolidated both into one bill which
became R.A. No. 7716.
 APPROVAL BY BOTH CHAMBERS OF CONFERENCE
COMMITTEE REPORT AND PROPOSED BILL DID
NOT CURE CONSTITUTIONAL INFIRMITIES.

I cannot agree with the suggestion that since both the Senate and the House had approved the
bicameral conference committee report and the bill proposed by it in substitution of HB No.
11197 and SB No. 1630, whatever infirmities may have been committed by it were cured by
ratification. This doctrine of ratification may apply to minor procedural flaws or tolerable breachs
of the parameters of the bicameral conference committee's limited powers but never to
violations of the Constitution. Congress is not above the Constitution. In the instant case, since
SB No. 1630 was introduced in violation of Section 24, Article VI of the Constitution, was passed
in the Senate in violation of the "three readings" rule, and was not transmitted to the House for
the completion of the constitutional process of legislation, and HB No. 11197 was not likewise
passed by the Senate on second and third readings, neither the Senate nor the House could
validly approve the bicameral conference committee report and the proposed bill.

In view of the foregoing, the conclusion is inevitable that for non-compliance with mandatory
provisions of the Constitution and of the Rules of the Senate and of the House on the enactment
of laws, R.A. No. 7716 is unconstitutional and, therefore, null and void. A discussion then of the
instrinsic validity of some of its provisions would be unnecessary.

The majority opinion, however, invokes the enrolled bill doctrine and wants this Court to desist
from looking behind the copy of the assailed measure as certified by the Senate President and
the Speaker of the House. I respectfully submit that the invocation is misplaced. First, as to the
issue of origination, the certification in this case explicitly states that R.A. No. 7716 is a
"consolidation of House Bill No. 11197 and Senate Bill No. 1630." This is conclusive evidence
that the measure did not originate exclusively in the House. Second, the enrolled bill doctrine is
of American origin, and unquestioned fealty to it may no longer be justified in view of the
expanded jurisdiction 37 of this Court under Section 1, Article VIII of our Constitution which now
expressly grants authority to this Court 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 the
Government.

Third, even under the regime of the 1935 Constitution which did not contain the above provision,
this Court, through Mr. Chief Justice Makalintal, in Astorga vs. Villegas, 38 declared that it cannot
be truly said that Mabanag vs. Lopez Vito 39 has laid to rest the question of whether the enrolled
bill doctrine or the journal entry rule should be adhered to in this jurisdiction, and stated:

As far as Congress itself is concerned, there is nothing sacrosanct in the

certification made by the presiding officers. It is merely a mode of authentication.
The lawmaking process in Congress ends when the bill is approved 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, it is the approval of
Congress and not the signatures of the presiding officers that is essential. Thus
the (1935) Constitution says that '[e]very bill passed by the Congress shall,
before it becomes a 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 in the
 passage' and it follows that if a bill, otherwise fully enacted as a law, is not
attested by the presiding officer, other proof that it has 'passed both houses will
satisfy the constitutional requirement.'

Fourth, even in the United States, the enrolled bill doctrine has been substantially undercut. This
is shown in the disquisitions of Mr. Justice Reynato S. Puno in his dissenting opinion,
citing Sutherland, Statutory Construction.

Last, the pleadings of the parties have established beyond doubt that HB No. 11197 was not
acted on second and third readings in the Senate and SB No. 1630, which was approved by the
Senate on second and third readings in substitution of SB No. 1129, was never transmitted to
the House for its passage. Otherwise stated, they were only passed in their respective chamber
of origin but not in the other. In no way can each become a law under paragraph 2, Section 26,
Article VI of the Constitution. For the Court to close its eyes to this fact because of the enrolled
bill doctrine is to shrink its duty to hold "inviolate what is decreed by the Constitution." 40

I vote then to GRANT these petitions and to declare R.A. No. 7716 as unconstitutional.

ROMERO, J.:

Few issues brought before this Court for resolution have roiled the citizenry as much as the
instant case brought by nine petitioners which challenges the constitutionality of Republic Act
No. 7716 (to be referred to herein as the "Expanded Value Added Tax" or EVAT law to
distinguish it from Executive Order No. 273 which is the VAT law proper) that was enacted on
May 5, 1994. A visceral issue, it has galvanized the populace into mass action and strident
protest even as the EVAT proponents have taken to podia and media in a post facto information
campaign.

The Court is confronted here with an atypical case. Not only is it a vatful of seething controversy
but some unlikely petitioners invoke unorthodox remedies. Three Senator-petitioners would
nullify a statute that bore the indispensable stamp of approval of their own Chamber with two of
them publicly repudiating what they had earlier endorsed. With two former colleagues, one of
them an erstwhile Senate President, making common cause with them, they would stay the
implementation by the Executive Department of a law which they themselves have initiated.
They address a prayer to a co-equal Department to probe their official acts for any procedural
irregularities they have themselves committed lest the effects of these aberrations inflict such
damage or irreparable loss as would bring down the wrath of the people on their heads.

To the extent that they perceive that a vital cog in the internal machinery of the Legislature has
malfunctioned from having operated in blatant violation of the enabling Rules they have
themselves laid down, they would now plead that this other Branch of Government step in,
invoking the exercise of what is at once a delicate and awesome power. Undoubtedly, the case
at bench is as much a test for the Legislature as it is for the Judiciary.

A backward glance on the Value Added Tax (VAT) is in order at this point.

The first codification of the country's internal revenue laws was effected with the enactment of
Commonwealth Act No. 466, commonly known as the 'National Internal Revenue Code' which
was approved on June 15, 1939 and took effect on July 1, 1939, although the provisions on the
income tax were made retroactive to January 1, 1939.

Since 1939 when the turnover tax was replaced by the manufacturer's sales tax,
the Tax Code had provided for a single-stage value-added tax on original sales
by manufacturers, producers and importers computed on the 'cost deduction
method' and later, on the basis of the 'tax credit method.' The turnover tax was
re-introduced in 1985 by Presidential Decree No. 1991 (as amended by
Presidential Decree No. 2006). 1

In 1986, a tax reform package was approved by the Aquino Cabinet. It contained twenty-nine
measures, one of which proposed the adoption of the VAT, as well as the simplification of the
sales tax structure and the abolition of the turnover tax.

Up until 1987, the system of taxing goods consisted of (a) an excise tax on
certain selected articles (b) fixed and percentage taxes on original and
subsequent sales, on importations and on milled articles and (c) mining taxes on
mineral products. Services were subjected to percentage taxes based mainly on
gross receipts. 2

On July 25, 1987, President Corazon C. Aquino signed into law Executive Order No. 273 which
adopted the VAT. From the former single-stage value-added tax, it introduced the multi-stage
VAT system where "the value-added tax is imposed on the sale of and distribution process
culminating in sale, to the final consumer. Generally described, the taxpayer (the seller)
determines his tax liability by computing the tax on the gross selling price or gross receipt
("output tax") and subtracting or crediting the earlier VAT on the purchase or importation of
goods or on the sale of service ("input tax") against the tax due on his own sale." 3

On January 1, 1988, implementing rules and regulations for the VAT were promulgated.
President Aquino then issued Proclamation No. 219 on February 12, 1988 urging the public and
private sectors to join the nationwide consumers' education campaign for VAT.

Soon after the implementation of Executive Order No. 273, its constitutionality was assailed
before this Court in the case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas,
Inc., et al. v. Tan. 4 The four petitioners sought to nullify the VAT law "for being unconstitutional
in that its enactment is not allegedly within the powers of the President; that the VAT is
oppressive, discriminatory, regressive, and violates the due process and equal protection
clauses and other provisions of the 1987 Constitution." 5 In dismissing the consolidated
petitions, this Court stated:

The Court, following the time-honored doctrine of separation of powers cannot

substitute its judgment for that of the President as to the wisdom, justice and
advisability of the VAT. The Court can only look into and determine whether or
not Executive Order No. 273 was enacted and made effective as law, in the
manner required by and consistent with, the Constitution, and to make sure that it
was not issued in grave abuse of discretion amounting to lack or excess of
jurisdiction; and, in this regard, the Court finds no reason to impede its
application or continued implementation. 6
Although declared constitutional, the VAT law was sought to be amended from 1992 on by a
series of bills filed in both Houses of Congress. In chronological sequence, these were:

HB/SB No. - Date Filed in Congress

HB No. 253 - July 22, 1992

HB No. 771 - August 10, 1992

HB No. 2450 - September 9, 1992

Senate Res. No. 734 7 - September 10, 1992

HB No. 7033 - February 3, 1993

SB No. 1129 8 - March 1, 1993

HB No. 8086 - March 9, 1993

HB No. 9030 - May 11, 1993

HB No. 9210 9 - May 19, 1993

HB No. 9297 - May 25, 1993

HB No. 10012 - July 28, 1993

HB No. 10100 - August 3, 1993

HB No. 11197 in

substitution of

HB Nos. 253, 771,

2450, 7033, 8086,

9030, 9210, 9297

10012 and 10100 10 - November 5, 1993

We now trace the course taken by H.B. No. 11197 and S.B. No. 1129.

HB/SB No.
HB No. 11197 was approved in
the Lower House on
second reading - November 11, 1993

HB No. 11197 was approved in

the Lower House on third
reading and voted upon
with 114 Yeas and 12 Nays - November 17, 1993

HB No. 11197 was transmitted

to the Senate - November 18, 1993

Senate Committee on Ways and

Means submitted Com.
Report No. 349 recommeding
for approval SB No. 1630 in
substitution of SB No. 1129,
taking into consideration PS Res. No.
734 and HB No. 11197 11 - February 7, 1994

Certification by President Fidel V.

Ramos of Senate Bill No.
1630 for immediate enactment
to meet a public emergency - March 22, 1994

SB No. 1630 was approved by

the Senate on second and third
readings and subsequently
voted upon with 13 yeas, none
against and one abstention - March 24, 1994

Transmittal by the Senate to the

Lower House of a request
for a conference in view of
disagreeing provisions of
SB No. 1630 and HB NO.
11197 - March 24, 1994

The Bicameral Conference Committee

conducted various meetings to
reconcile the proposals on the
VAT - April 13, 19, 20, 21, 25

The House agreed on the Conference

Committee Report - April 27, 1994

The Senate agreed on the Conference

Committee Report - May 2, 1994
 The President signed Republic Act
No. 7716 - The Expanded
VAT Law 12 - May 5, 1994

Republic Act No. 7716 was

published in two newspapers
of general circulation - May 12, 1994

Republic Act No. 7716 became

effective - May 28, 1994

Republic Act No. 7716 merely expanded the base of the VAT law even as the tax retained its
multi-stage character.

At the oral hearing held on July 7, 1994, this Court delimited petitioners' arguments to the
following issues culled from their respective petitions.

PROCEDURAL ISSUES

Does Republic Act No. 7716 violate Article VI, Section 24, of the Constitution? 13

Does it violate Article VI, Section 26, paragraph 2, of the Constitution? 14

What is the extent of the power of the Bicameral Conference Committee?

SUBSTANTIVE ISSUES

Does the law violate the following provisions in Article III (Bill of Rights) of the Constitution:

1. Section 1 15

2. Section 4 16

3. Section 5 17

4. Section 10 18

Does the law violate the following other provisions of the Constitution?

1. Article VI, Section 28, paragraph 1 19

2. Article VI, Section 28, paragraph 3 20

As a result of the unedifying experience of the past where the Court had the propensity to steer
clear of questions it perceived to be "political" in nature, the present Constitution, in contrast,
has explicitly expanded judicial power to include the duty of the courts, especially the Supreme
Court, "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 the Government." 21 I
submit that under this explicit mandate, the Court is empowered to rule upon acts of other
Government entities for the purpose of determining whether there may have been, in fact,
irregularities committed tantamount to violation of the Constitution, which case would clearly
constitute a grave abuse of discretion on their part.

In the words of the sponsor of the above-quoted Article of the Constitution on the Judiciary, the
former Chief Justice Roberto R. Concepcion, "the judiciary is the final arbiter on the question of
whether or not a branch of 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 or lack of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.

This is the back ground of paragraph 2 of Section 1, which means that the courts cannot
hereafter exhibit its wonted reticence by claiming that such matters constitute a political
question." 22

In the instant petitions, this Court is called upon, not so much to exercise its traditional power of
judicial review as to determine whether or not there has indeed been a grave abuse of
discretion on the part of the Legislature amounting to lack or excess of jurisdiction.

Where there are grounds to resolve a case without touching on its constitutionality, the Court
will do so with utmost alacrity in due deference to the doctrine of separation of powers anchored
on the respect that must be accorded to the other branches of government which are
coordinate, coequal and, as far as practicable, independent of one another.

Once it is palpable that the constitutional issue is unavoidable, then it is time to assume
jurisdiction, provided that the following requisites for a judicial inquiry are met: that there must
be an actual and appropriate case; a personal and substantial interest of the party raising the
constitutional question; the constitutional question must be raised at the earliest possible
opportunity and the decision of the constitutional question must be necessary to the
determination of the case itself, the same being the lis mota of the case. 23

Having assured ourselves that the above-cited requisites are present in the instant petitions, we
proceed to take them up.

ARTICLE VI, SECTION 24

Some petitioners assail the constitutionality of Republic Act No. 7716 as being in violation of
Article VI, Section 24 of the Constitution which provides:

All appropriation, revenue or tariff bills, bills authorizing increase of the public
debt, bills of local application, and private bills, shall originate exclusively in the
House of Representatives, but the Senate may propose or concur with
amendments.

In G.R. Nos. 115455 and 115781, petitioners argue:

(a) The bill which became Republic Act No. 7716 did not originate exclusively in the House of
Representatives. The Senate, after receiving H.B. No. 11197, submitted its own bill, S.B. No.
1630, and proceeded to vote and approve the same after second and third readings.

(b) The Senate exceeded its authority to "propose or concur with amendments" when it
submitted its own bill, S.B. No. 1630, recommending its approval "in substitution of S.B. No.
1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197."

(c) H.B. No. 11197 was not deliberated upon by the Senate. Neither was it voted upon by the
Senate on second and third readings, as what was voted upon was S.B. No. 1630.

Article VI, Section 24 is taken word for word from Article VI, Section 18 of the 1935 Constitution
which was, in turn, patterned after Article I, Section 7 (1) of the Constitution of the United States,
which states:

All bills for raising revenue shall originate in the House of Representatives, but
the Senate may propose or concur with amendments as on other bills.

The historical precedent for requiring revenue bills to originate in Congress is explained in the
U.S. case of Morgan v. Murray. 24

The constitutional requirement that all bills for raising revenue shall originate in
the House of Representatives stemmed from a remedial outgrowth of the historic
conflict between Parliament (i.e., Commons) and the Crown, whose ability to
dominate the monarchially appointive and hereditary Lords was patent. See 1
Story, Constitution, S 875 et seq., 5th Ed.; 1 Cooley, Constitutional Limitations,
pp. 267, 268, 8th Ed., 1 Sutherland, Statutory Construction, S 806, 3d Ed. There
was a measure of like justification for the insertion of the provision of article I, S
7, cl. 1, of the Federal Constitution. At that time (1787) and thereafter until the
adoption (in 1913) of the Seventeenth Amendment providing for the direct
election of senators, the members of the United States Senate were elected for
each state by the joint vote of both houses of the Legislature of the respective
states, and hence, were removed from the people ...

The legislative authority under the 1935 Constitution being unicameral, in the form of the
National Assembly, it served no purpose to include the subject provision in the draft submitted
by the 1934 Constitutional Convention to the Filipino people for ratification.

In 1940, however, the Constitution was amended to establish a bicameral Congress of the
Philippines composed of a House of Representatives and a Senate.

In the wake of the creation of a new legislative machinery, new provisions were enacted
regarding the law-making power of Congress. The National Assembly explained how the final
formulation of the subject provision came about:

The concurrence of both houses would be necessary to the enactment of a law.

However, all appropriation, revenue or tariff bills, bills authorizing an increase of
the public debt, bills of local application, and private bills, should originate
exclusively in the House of Representatives, although the Senate could propose
or concur with amendments.
 In one of the first drafts of the amendments, it was proposed to give both houses
equal powers in lawmaking. There was, however, much opposition on the part of
several members of the Assembly. In another draft; the following provision, more
restrictive than the present provision in the amendment, was proposed and for
sometime was seriously considered:

'All bills appropriating public funds, revenue or tariff bills, bills of local application,
and private bills shall originate exclusively in the Assembly, but the Senate may
propose or concur with amendments. In case of disapproval by the Senate of any
such bills, the Assembly may repass the same by a two-thirds vote of all its
members, and thereupon, the bill so repassed shall be deemed enacted and may
be submitted to the President for corresponding action. In the event that the
Senate should fail to finally act on any such bills, the Assembly may, after thirty
days from the opening of the next regular sessions of the same legislative term,
reapprove the same with a vote of two-thirds of all the members of the Assembly.
And upon such reapproval, the bill shall be deemed enacted and may be
submitted to the president for corresponding action.'

However, the special committee voted finally to report the present amending
provision as it is now worded; and in that form it was approved by the National
Assembly with the approval of Resolution No. 38 and later of Resolution No.
73. 25 (Italics supplied)

Thus, the present Constitution is identically worded as its 1935 precursor: "All appropriation,
revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and
private bills, shall originate exclusively in the House of Representatives, but the Senate may
propose or concur with amendments." (Italics supplied)

That all revenue bills, such as Republic Act No. 7716, should "originate exclusively in the House
of Representatives" logically flows from the more representative and broadly-based character of
this Chamber.

It is said that the House of Representatives being the more popular branch of the
legislature, being closer to the people, and having more frequent contacts with
them than the Senate, should have the privilege of taking the initiative in the
proposals of revenue and tax project, the disposal of the people's money, and the
contracting of public indebtedness.

These powers of initiative in the raising and spending of public funds enable the
House of Representatives not only to implement but even to determine the fiscal
policies of the government. They place on its shoulders much of the responsibility
of solving the financial problems of the government, which are so closely related
to the economic life of the country, and of deciding on the proper distribution of
revenues for such uses as may best advance public interests. 26

The popular nature of the Lower House has been more pronounced with the inclusion of
Presidentially-appointed sectoral representatives, as provided in Article VI, Section 5 (2), of the
Constitution, thus: "The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three consecutive terms after
the ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other sectors as may be provided by
law, except the religious sector." (Italics supplied)

This novel provision which was implemented in the Batasang Pambansa during the martial law
regime 27 was eventually incorporated in the present Constitution in order to give those from the
marginalized and often deprived sector, an opportunity to have their voices heard in the halls of
the Legislature, thus giving substance and meaning to the concept of "people empowerment."

That the Congressmen indeed have access to, and consult their constituencies has been
demonstrated often enough by the fact that even after a House bill has been transmitted to the
Senate for concurrence, some Congressmen have been known to express their desire to
change their earlier official position or reverse themselves after having heard their constituents'
adverse reactions to their representations.

In trying to determine whether the mandate of the Constitution with regard to the initiation of
revenue bills has been preserved inviolate, we have recourse to the tried and tested method of
definition of terms. The term "originate" is defined by Webster's New International Dictionary
(3rd Edition, 1986) as follows: "v.i., to come into being; begin; to start."

On the other hand, the word "exclusively" is defined by the same Webster's Dictionary as "in an
exclusive manner; to the exclusion of all others; only; as, it is his, exclusively." Black's Law
Dictionary has this definition: "apart from all others; only; solely; substantially all or for the
greater part. to the exclusion of all other; without admission of others to participation; in a
manner to exclude. Standard Oil Co. of Texas v. State, Tex. Civ. App., 142 S.W. 2d 519, 521,
522, 523."

This Court had occasion to define the term "exclusive" as follows:

... In its usual and generally accepted sense, the term means possessed to the
exclusion of others; appertaining to the subject alone; not including, admitting or
pertaining to another or others; undivided, sole. 28

When this writer, during the oral argument of July 7, 1994, asked the petitioner in G.R. No.
115455 whether he considers the word "exclusively" to be synonymous with "solely," he replied
in the affirmative. 29

A careful examination of the legislative history traced earlier in this decision shows that the
original VAT law, Executive Order No. 273, was sought to be amended by ten House bills which
finally culminated in House Bill No. 11197, as well as two Senate bills. It is to be noted that the
first House Bill No. 253 was filed on July 22, 1992, and two other House bills followed in quick
succession on August 10 and September 9, 1992 before a Senate Resolution, namely, Senate
Res. No. 734, was filed on September 10, 1992 and much later, a Senate Bill proper, viz.,
Senate Bill No. 1129 on March 1, 1993. Undoubtedly, therefore, these bills originated or had
their start in the House and before any Senate bill amending the VAT law was filed. In point of
time and venue, the conclusion is ineluctable that Republic Act No. 7716, which is indisputably a
revenue measure, originated in the House of Representatives in the form of House Bill No. 253,
the first EVAT bill.
Additionally, the content and substance of the ten amendatory House Bills filed over the roughly
one-year period from July 1992 to August 1993 reenforce the position that these revenue bills,
pertaining as they do, to Executive Order No. 273, the prevailing VAT law, originated in the
Lower House.

House Bill Nos. 253, 771, 2450, 7033, 8086, 9030, 9210, 9297, 10012 and 10100 were
intended to restructure the VAT system by exempting or imposing the tax on certain items or
otherwise introducing reforms in the mechanics of implementation. 30 Of these, House Bill No.
9210 was favored with a Presidential certification on the need for its immediate enactment to
meet a public emergency. Easily the most comprehensive, it noted that the revenue
performance of the VAT, being far from satisfactory since the collections have always fallen
short of projections, "the system is rendered inefficient, inequitable and less comprehensive."
Hence, the Bill proposed several amendments designed to widen the tax base of the VAT and
enhance its administration. 31

That House Bill No. 11197 being a revenue bill, originated from the Lower House was
acknowledged, in fact was virtually taken for granted, by the Chairmen of the Committee on
Ways and Means of both the House of Representatives and the Senate. Consequently, at the
April 19, 1994 meeting of the Bicameral Conference Committee, the Members agreed to make
the House Bill as the "frame of reference" or "base" of the discussions of the Bicameral
Conference Committee with the "amendments" or "insertions to emanate from the Senate." 32

As to whether the bills originated exclusively in the Lower House is altogether a different matter.
Obviously, bills amendatory of VAT did not originate solely in the House to the exclusion of all
others for there were P.S. Res. No. 734 filed in the Senate on September 10, 1992 followed by
Senate Bill No. 1129 which was filed on March 1, 1993. About a year later, this was substituted
by Senate Bill No. 1630 that eventually became the EVAT law, namely, Republic Act No. 7716.

Adverting to the passage of the amendatory VAT bills in the Lower House, it is to be noted that
House Bill No. 11197 which substituted all the prior bills introduced in said House complied with
the required readings, that is, the first reading consisting of the reading of the title and referral to
the appropriate Committee, approval on second reading on November 11, 1993 and on third
reading on November 17, 1993 before being finally transmitted to the Senate. In the Senate, its
identity was preserved and its provisions were taken into consideration when the Senate
Committee on Ways and Means submitted Com. Report No. 349 which recommended for
approval "S.B. No. 1630 in substitution of S.B. No. 1129, taking into consideration P.S. Res. No.
734 and H.B. No. 11197." At this stage, the subject bill may be considered to have passed first
reading in the Senate with the submission of said Committee Report No. 349 by the Senate
Committee on Ways and Means to which it had been referred earlier. What remained, therefore,
was no longer House Bill No. 11197 but Senate Bill No. 1630. Thence, the Senate, instead of
transmitting the bill to the Lower House for its concurrence and amendments, if any, took a
"shortcut," bypassed the Lower House and instead, approved Senate Bill No. 1630 on both
second and third readings on the same day, March 24, 1994.

The first irregularity, that is, the failure to return Senate Bill No. 1630 to the Lower House for its
approval is fatal inasmuch as the other chamber of legislature was not afforded the opportunity
to deliberate and make known its views. It is no idle dictum that no less than the Constitution
ordains: "The legislative power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives ..." 33 (Italics supplied)
It is to be pointed out too, that inasmuch as Senate Bill No. 1630 which had "taken into
consideration" House Bill No. 11197 was not returned to the Lower House for deliberation, the
latter Chamber had no opportunity at all to express its views thereon or to introduce any
amendment. The customary practice is, after the Senate has considered the Lower House Bill, it
returns the same to the House of origin with its amendments. In the event that there may be any
differences between the two, the same shall then be referred to a Conference Committee
composed of members from both Chambers which shall then proceed to reconcile said
differences.

In the instant case, the Senate transmitted to the Lower House on March 24, 1994, a letter
informing the latter that it had "passed S. No. 1630 entitled . . . (and) in view of the disagreeing
provisions of said bill and House Bill No. 11197, entitled . . . the Senate requests a
conference . . ." This, in spite of the fact that Com. Report No. 349 of the Senate Committee on
Ways and Means had already recommended for approval on February 7, 1994 "S.B. No.
1630 . . . taking into consideration H.B. No. 11197." Clearly, the Conference Committee could
only have acted upon Senate Bill No. 1630, for House Bill No. 11197 had already been fused
into the former.

At the oral hearing of July 7, 1994, petitioner in G.R. No. 115455 admitted, in response to this
writer's query, that he had attempted to rectify some of the perceived irregularities by presenting
a motion in the Senate to recall the bill from the Conference Committee so that it could revert to
the period of amendment, but he was outvoted, in fact "slaughtered." 34

In accordance with the Rules of the House of Representatives and the Senate, Republic Act No.
7716 was duly authenticated after it was signed by the President of the Senate and the Speaker
of the House of Representatives followed by the certifications of the Secretary of the Senate
and the Acting Secretary General of the House of Representatives. 35 With the signature of
President Fidel V. Ramos under the words "Approved: 5 May 1994," it was finally promulgated.

Its legislative journey ended, Republic Act No. 7716 attained the status of an enrolled bill which
is defined as one "which has been duly introduced, finally passed by both houses, signed by the
proper officers of each, approved by the governor (or president) and filed by the secretary of
state." 36

Stated differently:

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 is delivered 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, its authentication as a bill that 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 the official attestations of the
Speaker of the House of Representatives, of the President of the Senate, and of
the President of the United 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 having
passed Congress, all bills authenticated in the manner stated; leaving the courts
to determine, when the question properly arises, whether the Act, so
authenticated, is in conformity with the Constitution. 37

The enrolled bill assumes importance when there is some variance between what actually
transpired in the halls of Congress, as reflected in its journals, and as shown in the text of the
law as finally enacted. But suppose the journals of either or both Houses fail to disclose that the
law was passed in accordance with what was certified to by their respective presiding officers
and the President. Or that certain constitutional requirements regarding its passage were not
observed, as in the instant case. Which shall prevail: the journal or the enrolled bill?

A word on the journal.

The journal is the official record of the acts of a legislative body. It should be a
true record of the proceedings arranged in chronological order. It should be a
record of what is done rather than what is said. The journal should be a clear,
concise, unembellished statement of all proposals made and all actions taken
complying with all requirements of constitutions, statutes, charters or rules
concerning what is to be recorded and how it is to be recorded. 38

Article VI, Section 16 (4) of the Constitution ordains:

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

Each House shall also keep a Record of its proceedings." (Italics supplied)

The rationale behind the above provision and of the "journal entry rule" is as follows:

It is apparent that the object of this provision is to make the legislature show what
it has done, leaving nothing whatever to implication. And, when the legislature
says what it has done, with regard to the passage of any bill, it negatives the idea
that it has done anything else in regard thereto. Silence proves nothing where
one is commanded to speak . . . . Our constitution commands certain things to be
done in regard to the passage of a bill, and says that no bill shall become a law
unless these things are done. It seems a travesty upon our supreme law to say
that it guaranties to the people the right to have their laws made in this manner
only, and that there is no way of enforcing this right, or for the court to say that
this is law when the constitution says it is not law. There is one safe course which
is in harmony with the constitution, and that is to adhere to the rule that the
legislature must show, as commanded by the constitution, that it has done
everything required by the constitution to be done in the serious and important
matter of making laws. This is the rule of evidence provided by the constitution. It
is not presumptuous in the courts, nor disrespectful to the legislature, to judge
the acts of the legislature by its own evidence. 39
Confronted with a discrepancy between the journal proceedings and the law as duly enacted,
courts have indulged in different theories. The "enrolled bill" and "journal entry" rules, being
rooted deep in the Parliamentary practices of England where there is no written constitution,
and then transplanted to the United States, it may be instructive to examine which rule prevails
in the latter country through which, by a process of legislative osmosis, we adopted them in turn.

There seems to be three distinct and different rules as applicable to the enrolled
bill recognized by the various courts of this country. The first of these rules
appears to be that the enrolled bill is the ultimate proof and exclusive and
conclusive evidence that the bill passed the legislature in accordance with the
provisions of the Constitution. Such has been the holding in California, Georgia,
Kentucky, Texas, Washington, New Mexico, Mississippi, Indiana, South Dakota,
and may be some others.

The second of the rules seems to be that the enrolled bill is a verity and resort
cannot be had to the journals of the Legislature to show that the constitutional
mandates were not complied with by the Legislature, except as to those
provisions of the Constitution, compliance with which is expressly required to be
shown on the journal. This rule has been adopted in South Carolina, Montana,
Oklahoma, Utah, Ohio, New Jersey, United States Supreme Court, and others.

The third of the rules seems to be that the enrolled bill raises only a prima facie
presumption that the mandatory provisions of the Constitution have been
complied with and that resort may be had to the journals to refute that
presumption, and if the constitutional provision is one, compliance with which is
expressly required by the Constitution to be shown on the journals, then the mere
silence of the journals to show a compliance therewith will refute the
presumption. This rule has been adopted in Illinois, Florida, Kansas, Louisiana,
Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona, Oregon, New
Jersey, Colorado, and others. 40

In the 1980 case of D & W Auto Supply v. Department of Revenue, the Supreme Court of
Kentucky which had subscribed in the past to the first of the three theories, made the
pronouncement that it had shifted its stand and would henceforth adopt the third. It justified its
changed stance, thus:

We believe that a more reasonable rule is the one which Professor Sutherland
describes as the 'extrinsic evidence' rule . . . . Under this approach there is a
prima facie presumption that an enrolled bill is valid, but such presumption may
be overcome by clear satisfactory and convincing evidence establishing that
constitutional requirements have not been met. 41

What rule, if any, has been adopted in this jurisdiction?

Advocates of the "journal entry rule" cite the 1916 decision in U.S. v. Pons 42 where this Court
placed reliance on the legislative journals to determine whether Act No. 2381 was passed on
February 28, 1914 which is what appears in the Journal, or on March 1, 1914 which was closer
to the truth. The confusion was caused by the adjournment sine die at midnight of February 28,
1914 of the Philippine Commission.
A close examination of the decision reveals that the Court did not apply the "journal entry
rule" vis-a-vis the "enrolled bill rule" but the former as against what are "behind the legislative
journals."

Passing over the question of whether the printed Act (No. 2381), published by
authority of law, is conclusive evidence as to the date when it was passed, we
will inquire whether the courts may go behind the legislative journals for the
purpose of determining the date of adjournment when such journals are clear
and explicit. 43

It is to be noted from the above that the Court "passed over" the probative value to be accorded
to the enrolled bill.

Opting for the journals, the Court proceeded to explain:

From their very nature and object, the records of the Legislature are as important
as those of the judiciary, and to inquire into the veracity of the journals of the
Philippine Legislature, when they are, as we have said clear and explicit, would
be to violate both the letter and the spirit of the organic laws by which the
Philippine Government was brought into existence, to invade a coordinate and
independent department of the Government, and to interfere with the legitimate
powers and functions of the Legislature. 44

Following the courts in the United States since the Constitution of the Philippine Government is
modeled after that of the Federal Government, the Court did not hesitate to follow the courts in
said country, i.e., to consider the journals decisive of the point at issue. Thus: "The journals say
that the Legislature adjourned at 12 midnight on February 28, 1914. This settles the question
and the court did not err in declining to go behind these journals." 45

The Court made a categorical stand for the "enrolled bill rule" for the first time in the 1947 case
of Mabanag v. Lopez Vito 46 where it held that an enrolled bill imports absolute verity and is
binding on the courts. This Court held itself bound by an authenticated resolution, despite the
fact that the vote of three-fourths of the Members of the Congress (as required by the
Constitution to approve proposals for constitutional amendments) was not actually obtained on
account of the suspension of some members of the House of Representatives and the Senate.
In this connection, the Court invoked the "enrolled bill rule" in this wise: "If a political question
conclusively binds the judges out of respect to the political departments, a duly certified law or
resolution also binds the judges under the 'enrolled bill rule' born of that respect." 47

Mindful that the U.S. Supreme Court is on the side of those who favor the rule and for no other
reason than that it conforms to the expressed policy of our law making body (i.e., Sec. 313 of
the old Code of Civil Procedure, as amended by Act No. 2210), the Court said that "duly
certified copies shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof." Without pulling the legal underpinnings from U.S. v. Pons, it justified its
position by saying that if the Court at the time looked into the journals, "in all probability, those
were the documents offered in evidence" and that "even if both the journals and authenticated
copy of the Act had been presented, the disposal of the issue by the Court on the basis of the
journals does not imply rejection of the enrolled theory; for as already stated, the due enactment
of a law may be proved in either of the two ways specified in Section 313 of Act No. 190 as
amended." 48 Three Justices voiced their dissent from the majority decision.
Again, the Court made its position plain in the 1963 case of Casco Philippine Chemical Co., Inc.
v. Gimenez 49 when a unanimous Court ruled that: "The enrolled bill is conclusive upon the
courts as regards the tenor of the measure passed by Congress and approved by the
President. If there has been any mistake in the printing of a bill before it was certified by the
officers of Congress and approved by the Executive, the remedy is by amendment or curative
legislation not by judicial decree." According to Webster's New 20th Century Dictionary, 2nd ed.,
1983, the word "tenor" means, among others, "the general drift of something spoken or written;
intent, purport, substance."

Thus, the Court upheld the respondent Auditor General's interpretation that Republic Act No.
2609 really exempted from the margin fee on foreign exchange transactions "urea
formaldehyde" as found in the law and not "urea and formaldehyde" which petitioner insisted
were the words contained in the bill and were so intended by Congress.

In 1969, the Court similarly placed the weight of its authority behind the conclusiveness of the
enrolled bill. In denying the motion for reconsideration, the Court ruled in Morales v. Subido that
"the enrolled Act in the office of the legislative secretary of the President of the Philippines
shows that Section 10 is exactly as it is in the statute as officially published in slip form by the
Bureau of Printing ... Expressed elsewise, this is a matter worthy of the attention not of an Oliver
Wendell Holmes but of a Sherlock Holmes." 50 The alleged omission of a phrase in the final Act
was made, not at any stage of the legislative proceedings, but only in the course of the
engrossment of the bill, more specifically in the proofreading thereof.

But the Court did include a caveat that qualified the absoluteness of the "enrolled bill" rule
stating:

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 (Art. VI, secs. 10 [4], 20 [1], and
21 [1)]) expressly requires must be entered on the journal of each house. To
what extent the validity of a legislative act may be affected by a failure to have
such matters entered on the journal, is a question which we do not now decide
(Cf. e.g., Wilkes Country Comm'rs. v. Coler, 180 U.S. 506 [1900]). All we hold is
that with respect to matters not expressly required to be entered on the journal,
the enrolled bill prevails in the event of any discrepancy. 51

More recently, in the 1993 case of Philippine Judges Association v. Prado, 52 this Court, in ruling
on the unconstitutionality of Section 35 of Republic Act No. 7354 withdrawing the franking
privilege from the entire hierarchy of courts, did not so much adhere to the enrolled bill rule
alone as to both "enrolled bill and legislative journals." Through Mr. Justice Isagani A. Cruz, we
stated: "Both the enrolled bill and the legislative journals certify that the measure was duly
enacted, i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We are bound by
such official assurances from a coordinate department of the government, to which we owe, at
the very least, a becoming courtesy."

Aware of the shifting sands on which the validity and continuing relevance of the "enrolled bill"
theory rests, I have taken pains to trace the history of its applicability in this jurisdiction, as
influenced in varying degrees by different Federal rulings.
As applied to the instant petition, the issue posed is whether or not the procedural irregularities
that attended the passage of House Bill No. 11197 and Senate Bill No. 1630, outside of the
reading and printing requirements which were exempted by the Presidential certification, may
no longer be impugned, having been "saved" by the conclusiveness on us of the enrolled bill. I
see no cogent reason why we cannot continue to place reliance on the enrolled bill, but only
with respect to matters pertaining to the procedure followed in the enactment of bills in
Congress and their subsequent engrossment, printing errors, omission of words and phrases
and similar relatively minor matters relating more to form and factual issues which do not
materially alter the essence and substance of the law itself.

Certainly, "courts cannot claim greater ability to judge procedural legitimacy, since constitutional
rules on legislative procedure are easily mastered. Procedural disputes are over facts - whether
or not the bill had enough votes, or three readings, or whatever - not over the meaning of the
constitution. Legislators, as eyewitnesses, are in a better position than a court to rule on the
facts. The argument is also made that legislatures would be offended if courts examined
legislative procedure. 53

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

This issue I wish to address forthwith.

EXTENT OF THE POWER OF THE BICAMERAL CONFERENCE COMMITTEE

One of the issues raised in these petitions, especially in G.R. Nos. 115781, 115543 and
115754, respectively, is whether or not --

Congress violated Section 26, par. 2, Article VI (of the 1987 Constitution) when it
approved the Bicameral Conference Committee Report which embodied, in
violation of Rule XII of the Rules of the Senate, a radically altered tax measure
containing provisions not reported out or discussed in either House as well as
provisions on which there was no disagreement between the House and the
Senate and, worse, provisions contrary to what the House and the Senate had
approved after three separate readings. 54

and

By adding or deleting provisions, when there was no conflicting provisions

between the House and Senate versions, the BICAM acted in excess of its
jurisdiction or with such grave abuse of discretion as to amount to loss of
jurisdiction. ... In adding to the bill and thus subjecting to VAT, real properties,
media and cooperatives despite the contrary decision of both Houses, the
BICAM exceeded its jurisdiction or acted with such abuse of discretion as to
amount to loss of jurisdiction. . . . 55

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 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 the Government." We are also guided by the principle that a
court may interfere with the internal procedures of its coordinate branch only to uphold the
Constitution. 56

A conference committee has been defined:

... unlike the joint committee is two committees, one appointed by each house. It
is normally appointed for a specific bill and its function is to gain accord between
the two houses either by the recession of one house from its bill or its
amendments or by the further amendment of the existing legislation or by the
substitution of an entirely new bill. Obviously the conference committee is always
a special committee and normally includes the member who introduced the bill
and the chairman of the committee which considered it together with such other
representatives of the house as seem expedient. (Horack, Cases and Materials
on Legislation [1940] 220. See also Zinn, Conference Procedure in Congress, 38
ABAJ 864 [1952]; Steiner, The Congressional Conference Committee [U of III.
Press, 1951]). 57

From the foregoing definition, it is clear that a bicameral conference committee is a creature, not
of the Constitution, but of the legislative body under its power to determine rules of its
proceedings under Article VI, Sec. 16 (3) of the Constitution. Thus, it draws its life and vitality
from the rules governing its creation. The why, when, how and wherefore of its operations, in
other words, the parameters within which it is to function, are to be found in Section 26, Rule XII
of the Rules of the Senate and Section 85 of the Rules of the House of Representatives,
respectively, which provide:

Rule XII, Rules of the Senate

SEC. 26. In the event that the Senate does not agree with the House of
Representatives on the provision of any bill or joint resolution, the differences
shall be settled by a conference committee of both Houses which shall meet
within ten days after their composition.

The President shall designate the members of the conference committee in

accordance with subparagraph (c), Section 8 of Rule III.

Each Conference Committee Report shall contain a detailed and sufficiently

explicit statement of the changes in or amendments to the subject measure, and
shall be signed by the conferees.

The consideration of such report shall not be in order unless the report has been
filed with the Secretary of the Senate and copies thereof have been distributed to
the Members."

Rules of the House of Representatives

SEC. 85. Conference Committee Reports. - In the event that the House does not
agree with the Senate on the amendments to any bill or joint resolution, the
differences may be settled by conference committee of both Chambers.
 The consideration of conference committee reports shall always be in order,
except when the journal is being read, while the roll is being called or the House
is dividing on any question. Each of the pages of such reports shall contain a
detailed, sufficiently explicit statement of the changes in or amendments to the
subject measure.

The consideration of such report shall not be in order unless copies thereof are
distributed to the Members: Provided, That in the last fifteen days of each
session period it shall be deemed sufficient that three copies of the report, signed
as above provided, are deposited in the office of the Secretary General.

Under these Rules, a bicameral conference committee comes into being only when there
are disagreements and differences between the Senate and the House with regard to certain
provisions of a particular legislative act which have to be reconciled.

Jefferson's Manual, which, according to Section 112, Rule XLIX of the Senate Rules,
supplements it, states that a conference committee is usually called "on the occasion of
amendments between the Houses" and "in all cases of difference of opinion between the two
House on matters pending between them." 58 It further states:

The managers of a conference must confine themselves to the differences committed to them,

and may not include subjects not within the disagreements, even though germane to a question
in issue. But they may perfect amendments committed to them if they do not in so doing go
beyond the differences. ... Managers may not change the text to which both Houses have
agreed. 59 (Italics supplied.)

Mason's Manual of Legislative Procedures which is also considered as controlling authority for

any situation not covered by a specific legislative rule, 60 states that either House may "request a
conference with the other on any matter of difference or dispute between them" and that in such
a request, "the subject of the conference should always be stated." 61

In the Philippines, as in the United States, the Conference Committee exercises such a wide
range of authority that they virtually constitute a third House in the Legislature. As admitted by
the Solicitor General, "It was the practice in past Congresses for Conference Committees to
insert in bills approved by the two Houses new provisions that were not originally contemplated
by them." 62

In Legislative Procedure, Robert Luce gives a graphic description of the milieu and the
circumstances which have conspired to transform an initially innocuous mechanism designed to
facilitate action into an all-powerful Frankenstein that brooks no challenge to its authority even
from its own members.

Their power lies chiefly in the fact that reports of conference committees must be
accepted without amendment or else rejected in toto. The impulse is to get done
with the matters and so the motion to accept has undue advantage, for some
members are sure to prefer swallowing unpalatable provisions rather than
prolong controversy. This is the more likely if the report comes in the rush of
business toward the end of a session, when to seek further conference might
result in the loss of the measure altogether. At any time in the session there is
some risk of such a result following the rejection of a conference report, for it may
 not be possible to secure a second conference, or delay may give opposition to
the main proposal chance to develop more strength.

xxx xxx xxx

Entangled in a network of rule and custom, the Representative who resents and
would resist this theft of his rights, finds himself helpless. Rarely can he vote,
rarely can he voice his mind, in the matter of any fraction of the bill. Usually he
cannot even record himself as protesting against some one feature while
accepting the measure as whole. Worst of all, he cannot by argument or
suggested change, try to improve what the other branch has done.

This means more than the subversion of individual rights. It means to a degree
the abandonment of whatever advantage the bicameral system may have. By so
much it in effect transfers the lawmaking power to a small group of members
who work out in private a decision that almost always prevails. What is worse,
these men are not chosen in a way to ensure the wisest choice. It has become
the practice to name as conferees the ranking members of the committee, so that
the accident of seniority determines. Exceptions are made, but in general it is not
a question of who are most competent to serve. Chance governs, sometimes
giving way to favor, rarely to merit.

xxx xxx xxx

Speaking broadly, the system of legislating by conference committee is

unscientific and therefore defective. Usually it forfeits the benefit of scrutiny and
judgment by all the wisdom available. Uncontrolled, it is inferior to that process
by which every amendment is secured independent discussion and
vote. ... 63 (Italics supplied)

Not surprisingly has it been said: "Conference Committee action is the most undemocratic
procedure in the legislative process; it is an appropriate target for legislative critics." 64

In the case at bench, petitioners insist that the Conference Committee to which Senate Bill No.
1630 and House Bill No. 11197 were referred for the purpose of harmonizing their differences,
overreached themselves in not confining their "reconciliation" function to those areas of
disagreement in the two bills but actually making "surreptitious insertions" and deletions which
amounted to a grave abuse of discretion.

At this point, it becomes imperative to focus on the errant provisions which found their way into
Republic Act No. 7716. Below is a breakdown to facilitate understanding the grounds for
petitioners' objections:

INSERTIONS MADE BY BICAMERAL CONFERENCE COMMITTEE (BICAM) TO SENATE

BILL (SB) NO. 1630 AND HOUSE BILL (HB) NO. 11197

1. Sec. 99 of the National Internal Revenue Code (NIRC)

(1) Under the HB, this section includes any person who, in the course of trade or business,
sells, barters or exchanges goods OR PROPERTIES and any person who LEASES
PERSONAL PROPERTIES.

(2) The SB completely changed the said section and defined a number of words and phrases.
Also, Section 99-A was added which included one who sells, exchanges, barters PROPERTIES
and one who imports PROPERTIES.

(3) The BICAM version makes LESSORS of goods OR PROPERTIES and importers of goods
LIABLE to VAT (subject of petition in G.R. No. 115754).

2. Section 100 (VAT on Sale of Goods)

The term "goods" or "properties" includes the following, which were not found in either the HB or
the SB:

- In addition to radio and television time; SATTELITE TRANSMISSION AND

CABLE TELEVISION TIME.

- The term "Other similar properties" was deleted, which was present in the HB
and the SB.

- Real properties held primarily for sale to customers or held for lease in the
ordinary course or business were included, which was neither in the HB nor the
SB (subject of petition in G.R. No. 115754).

3. Section 102

On what are included in the term "sale or exchange of services," as to make them subject to
VAT, the BICAM included/inserted the following (not found in either House or Senate Bills):

1. Services of lessors of property, whether personal or real (subject of petition in

G.R. No. 115754);

2. Warehousing services;

3. Keepers of resthouses, pension houses, inns, resorts;

4. Common carriers by land, air and sea;

5. Services of franchise grantees of telephone and telegraph;

6. Radio and television broadcasting;

7. All other franchise grantees except those under Section 117 of this Code
(subject of petition in G.R. No. 115852);

8. Services of surety, fidelity, indemnity, and bonding companies;

 9. Also inserted by the BICAM (on page 8 thereof) is the lease or use of or the
right to use of satellite transmission and cable television time.

4. Section 103 (Exempt Transactions)

The BICAM deleted subsection (f) in its entirety, despite its inclusion in both the House and
Senate Bills. Therefore, under Republic Act No. 7716, the "printing, publication, importation or
sale of books and any newspaper, magazine, review, or bulletin which appears at regular
intervals with fixed prices for subscription and sale and which is not devoted principally to the
publication of advertisements" is subject to VAT (subject of petition in G.R. No. 115931 and
G.R. No. 115544).

The HB and SB did not touch Subsection (g) but it was amended by the BICAM by changing the
word TEN to FIVE. Thus, importation of vessels with tonnage of more than five thousand tons is
VAT exempt.

Subsection L, which was identical in the HB and the SB that stated that medical, dental, hospital
and veterinary services were exempted from the VAT was amended by the BICAM by adding
the qualifying phrase: EXCEPT THOSE RENDERED BY PROFESSIONALS, thus subjecting
doctors, dentists and veterinarians to the VAT.

Subsection U which exempts from VAT "transactions which are exempt under special laws,"
was amended by the BICAM by adding the phrase: EXCEPT THOSE GRANTED UNDER PD
Nos. 66, 529, 972, 1491, AND 1590, AND NON-ELECTRIC COOPERATIVES UNDER RA 6938
(subject of petition in G.R. No. 115873), not found in either the HB or the SB, resulting in the
inclusion of all cooperatives to the VAT, except non-electric cooperatives.

The sale of real properties was included in the exempt transactions under the House Bill, but the
BICAM qualified this with the provision:

(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO

CUSTOMERS OR HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE
OR BUSINESS OR REAL PROPERTY UTILIZED FOR LOW-COST AND
SOCIALIZED HOUSING AS DEFINED BY RA NO. 7279 OTHERWISE KNOWN
AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992 AND OTHER
RELATED LAWS. (subject of petition in G.R. No. 115754)

The BICAM also exempted the sale of properties, the receipts of which are not less than
P480,000.00 or more than P720,000.00. Under the SB, no amount was given, but in the HB it
was stated that receipts from the sale of properties not less than P350,000.00 nor more than
P600,000.00 were exempt.

It did not include, as VAT exempt, the sale or transfer of securities, as defined in the Revised
Securities Act (BP 178) which was contained in both Senate and House Bills.

5. Section 104

Not included in the HB or the SB is the phrase "INCLUDING PACKAGING MATERIALS" which
was inserted by the BICAM in Section 104 (A) (1) (B), thus excluding from creditable input tax
packaging materials and the phrase "ON WHICH A VALUE-ADDED TAX HAS BEEN
ACTUALLY PAID" in Section 104 (A) (2).

6. Section 107

Both House and Senate Bills provide for the payment of P500.00 VAT registration fee but this
was increased by BICAM to P1,000.00.

7. Section 112

Regarding a person whose sales or receipts are exempt under Section 103 (w), the BICAM
inserted the phrase: "THREE PERCENT UPON THE EFFECTIVITY OF THIS ACT AND FOUR
PERCENT (4%) TWO YEARS THEREAFTER," although the SB and the HB provide only "three
percent of his gross quarterly sales."

8. Section 115

The BICAM adopted the HB version which subjects common carriers by land, air or water for
the transport of passengers to 3% of their gross quarterly sales, which is not found in the SB.

9. Section 117

The BICAM amended this section by subjecting franchises on electric, gas and water utilities to
a tax of two percent (2%) on gross receipts derived ..., although neither the HB nor the SB has a
similar provision.

10. Section 17 (d)

(a) The BICAM defers for only 2 years the VAT on services of actors and actresses, although
the SB defers it for 3 years.

(b) The BICAM uses the word "EXCLUDE" in the section on deferment of VAT collection on
certain goods and services. The HB does not contain any counterpart provision and SB only
allows deferment for no longer than 3 years.

11. Section 18 on the Tax Administration Development Fund is an entirely new provision not
contained in the House/Senate Bills. This fund is supposed to ensure effective implementation
of Republic Act No. 7716.

12. Section 19

No period within which to promulgate the implementing rules and regulations is found in the HB
or the SB but BICAM provided "within 90 days" which found its way in Republic Act No. 7716.

Even a cursory perusal of the above outline will convince one that, indeed, the Bicameral
Conference Committee (henceforth to be referred to as BICAM) exceeded the power and
authority granted in the Rules of its creation. Both Senate and House Rules limit the task of the
Conference Committee in almost identical language to the settlement of differences in the
provisions or amendments to any bill or joint resolution. If it means anything at all, it is that there
are provisions in subject bill, to start with, which differ and, therefore, need reconciliation.
Nowhere in the Rules is it authorized to initiate or propose completely new matter. Although
under certain rules on legislative procedure, like those in Jefferson's Manual, a conference
committee may introduce germane matters in a particular bill, such matters should be
circumscribed by the committee's sole authority and function to reconcile differences.

Parenthetically, in the Senate and in the House, a matter is "germane" to a particular bill if there
is a common tie between said matter and the provisions which tend to promote the object and
purpose of the bill it seeks to amend. If it introduces a new subject matter not within the purview
of the bill, then it is not "germane" to the bill. 65 The test is whether or not the change
represented an amendment or extension of the basic purpose of the original, or the introduction
of an entirely new and different subject matter. 66

In the BICAM, however, the germane subject matter must be within the ambit of the
disagreement between the two Houses. If the "germane" subject is not covered by the
disagreement but it is reflected in the final version of the bill as reported by the Conference
Committee or, if what appears to be a "germane" matter in the sense that it is "relevant or
closely allied" 67 with the purpose of the bill, was not the subject of a disagreement between the
Senate and the House, it should be deemed an extraneous matter or even a "rider" which
should never be considered legally passed for not having undergone the three-day reading
requirement. Insertion of new matter on the part of the BICAM is, therefore, an ultra vires act
which makes the same void.

The determination of what is "germane" and what is not may appear to be a difficult task but the
Congress, having been confronted with the problem before, resolved it in accordance with the
rules. In that case, the Congress approved a Conference Committee's insertion of new
provisions that were not contemplated in any of the provisions in question between the Houses
simply because of the provision in Jefferson's Manual that conferees may report matters "which
are germane modifications of subjects in disagreement between the Houses and the
committee. 68 In other words, the matter was germane to the points of disagreement between
the House and the Senate.

As regards inserted amendments in the BICAM, therefore, the task of determining what is

germane to a bill is simplified, thus: If the amendments are not circumscribed by the subjects of
disagreement between the two Houses, then they are not germane to the purpose of the bill.

In the instant case before us, the insertions and deletions made do not merely spell an effort at
settling conflicting provisions but have materially altered the bill, thus giving rise to the instant
petitions on the part of those who were caught unawares by the legislative legerdemain that
took place. Going by the definition of the word "amendment" in Black's Law Dictionary, 5th Ed.,
1979, which means "to change or modify for the better; to alter by modification, deletion, or
addition," said insertions and deletions constitute amendments. Consequently, these violated
Article VI, Section 26 (2) which provides inter alia: "Upon the last reading of a bill, no
amendment thereto shall be allowed . . ." This proscription is intended to subject all bills and
their amendments to intensive deliberation by the legislators and the ample ventilation of issues
to afford the public an opportunity to express their opinions or objections thereon. The same
rationale underlies the three-reading requirement to the end that no surprises may be sprung on
an unsuspecting citizenry.
Provisions of the "now you see it, now you don't" variety, meaning those which were either in
the House and/or Senate versions but simply disappeared or were "bracketed out" of existence
in the BICAM Report, were eventually incorporated in Republic Act No. 7716. Worse, some
goods, properties or services which were not covered by the two versions and, therefore, were
never intended to be so covered, suddenly found their way into the same Report. No advance
notice of such insertions prepared the rest of the legislators, much less the public who could be
adversely affected, so that they could be given the opportunity to express their views thereon.
Well has the final BICAM report been described, therefore, as an instance of "taxation without
representation."

That the conferees or delegates in the BICAM representing the two Chambers could not
possibly be charged with bad faith or sinister motives or, at the very least, unseemly behavior, is
of no moment. The stark fact is that items not previously subjected to the VAT now fell under its
coverage without interested sectors or parties having been afforded the opportunity to be heard
thereon. This is not to say that the Conference Committee Report should have undergone the
three readings required in Article VI, Section 26 (2), for this clearly refers only to bills which,
after having been initially filed in either House, negotiated the labyrinthine passage therein until
its approval. The composition of the BICAM including as it usually does, the Chairman of the
appropriate Committee, the sponsor of the bill and other interested members ensures an
informed discussion, at least with respect to the disagreeing provisions. The same does not
obtain as regards completely new matter which suddenly spring on the legislative horizon.

It has been pointed out that such extraneous matters notwithstanding, all Congressman and
Senators were given the opportunity to approve or turn down the Committee Report in toto, thus
"curing" whatever defect or irregularity it bore.

Earlier in this opinion, I explained that the source of the acknowledged power of this ad
hoc committee stems from the precise fact that, the meetings, being scheduled "take it or leave
it" basis. It has not been uncommon for legislators who, for one reason or another have been
frustrated in their attempt to pass a pet bill in their own chamber, to work for its passage in the
BICAM where it may enjoy a more hospitable reception and faster approval. In the instant case,
had there been full, open and unfettered discussion on the bills during the Committee sessions,
there would not have been as much vociferous objections on this score. Unfortunately, however,
the Committee held two of the five sessions behind closed doors, sans stenographers, record-
takers and interested observers. To that extent, the proceedings were shrouded in mystery and
the public's right to information on matters of public concern as enshrined in Article III, Section
7 69 and the government's policy of transparency in transactions involving public interest in
Article II, Section 28 of the Constitution 70 are undermined.

Moreover, that which is void ab initio such as the objectionable provisions in the Conference
Committee Report, cannot be "cured" or ratified. For all intents and purposes, these never
existed. Quae ab initio non valent, ex post facto convalescere non possunt. Things that are
invalid from the beginning are not made valid by a subsequent act.

Should this argument be unacceptable, the "enrolled bill" doctrine, in turn, is invoked to support
the proposition that the certification by the presiding officers of Congress, together with the
signature of the President, bars further judicial inquiry into the validity of the law. I reiterate my
submission that the "enrolled bill ruling" may be applicable but only with respect to questions
pertaining to the procedural enactment, engrossment, printing, the insertion or deletion of a
word or phrase here and there, but would draw a dividing line with respect to substantial
substantive changes, such as those introduced by the BICAM herein.

We have before us then the spectacle of a body created by the two Houses of Congress for the
very limited purpose of settling disagreements in provisions between bills emanating therefrom,
exercising the plenary legislative powers of the parent chambers but holding itself exempt from
the mandatory constitutional requirements that are the hallmarks of legislation under the aegis
of a democratic political system. From the initial filing, through the three readings which entail
detailed debates and discussions in Committee and plenary sessions, and on to the transmittal
to the other House in a repetition of the entire process to ensure exhaustive deliberations - all
these have been skipped over. In the proverbial twinkling of an eye, provisions that probably
may not have seen the light of day had they but run their full course through the legislative mill,
sprang into existence and emerged full-blown laws.

Yet our Constitution vests the legislative power in "the Congress of the Philippines which shall
consist of a Senate and a House of Representatives ..." 71 and not in any special, standing or
super committee of its own creation, no matter that these have been described, accurately
enough, as "the eye, the ear, the hand, and very often the brain of the house."

Firstly, that usage or custom has sanctioned this abbreviated, if questionable, procedure does
not warrant its being legitimized and perpetuated any longer. Consuetudo, contra rationem
introducta, potius usurpatio quam consuetudo appellari debet. A custom against reason is rather
an usurpation. In the hierarchy of sources of legislative procedure, constitutional rules, statutory
provisions and adopted rules (as for example, the Senate and House Rules), rank highest,
certainly much ahead of customs and usages.

Secondly, is this Court to assume the role of passive spectator or indulgent third party, timorous
about exercising its power or more importantly, performing its duty, of making a judicial
determination on the issue of whether there has been grave abuse of discretion by the other
branches or instrumentalities of government, where the same is properly invoked? The time is
past when the Court was not loathe to raise the bogeyman of the political question to avert a
head-on collision with either the Executive or Legislative Departments. Even the separation of
powers doctrine was burnished to a bright sheen as often as it was invoked to keep the judiciary
within bounds. No longer does this condition obtain. Article VIII, Section 2 of the Constitution
partly quoted in this paragraph has broadened the scope of judicial inquiry. This Court can now
safely fulfill its mandate of delimiting the powers of co-equal departments like the Congress, its
officers or its committees which may have no compunctions about exercising legislative powers
in full.

Thirdly, dare we close our eyes to the presumptuous assumption by a runaway committee of its
progenitor's legislative powers in derogation of the rights of the people, in the process,
subverting the democratic principles we all are sworn to uphold, when a proper case is made
out for our intervention? The answers to the above queries are self-evident.

I call to mind this exhortation: "We are sworn to see that violations of the constitution - by any
person, corporation, state agency or branch of government - are brought to light and corrected.
To countenance an artificial rule of law that silences our voices when confronted with violations
of our Constitution is not acceptable to this Court." 72
I am not unaware that a rather recent decision of ours brushed aside an argument that a
provision in subject law regarding the withdrawal of the franking privilege from the petitioners
and this Court itself, not having been included in the original version of Senate Bill No. 720 or of
House Bill No. 4200 but only in the Conference Committee Report, was violative of Article VI,
Section 26 (2) of the Constitution. Likewise, that said Section 35, never having been a subject of
disagreement between both Houses, could not have been validly added as an amendment
before the Conference Committee.

The majority opinion in said case explained:

While it is true that a conference committee is the mechanism for compromising

differences between the Senate and the House, it is not limited in its jurisdiction
to this question. Its broader function is described thus:

'A conference committee may deal generally with the subject matter or it may be
limited to resolving the precise differences between the two houses. Even where
the conference committee is not by rule limited in its jurisdiction, legislative
custom severely limits the freedom with which new subject matter can be
inserted into the conference bill. But occasionally a conference committee
produces unexpected results, results beyond its mandate. These excursions
occur even where the rules impose strict limitations on conference committee
jurisdiction. This is symptomatic of the authoritarian power of conference
committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.
81).' 73 (Italics supplied)

At the risk of being repetitious, I wish to point out that the general rule, as quoted above, is:
"Even where the conference committee is not by rule limited in its jurisdiction, legislative custom
severely limits the freedom with which new subject matter can be inserted into the conference
bill." What follows, that is, "occasionally a conference committee produces unexpected results,
results beyond its mandate. . ." is the exception. Then it concludes with a declaration that: "This
is symptomatic of the authoritarian power of conference committee." Are we about to reinstall
another institution that smacks of authoritarianism which, after our past experience, has become
anathema to the Filipino people?

The ruling above can hardly be cited in support of the proposition that a provision in a BICAM
report which was not the subject of differences between the House and Senate versions of a bill
cannot be nullified. It submit that such is not authorized in our Basic Law. Moreover, this
decision concerns merely one provision whereas the BICAM Report that culminated in the
EVAT law has a wider scope as it, in fact, expanded the base of the original VAT law by
imposing the tax on several items which were not so covered prior to the EVAT.

One other flaw in most BICAM Reports, not excluding this one under scrutiny, is that, hastily
drawn up, it often fails to conform to the Senate and House Rules requiring no less than a
"detailed" and "sufficiently explicit statement of the changes in or amendments to the subject
measure." The Report of the committee, as may be gleaned from the preceding pages, was no
more than the final version of the bill as "passed" by the BICAM. The amendments or subjects
of dissension, as well as the reconciliation made by the committee, are not even pointed out,
much less explained therein.
It may be argued that legislative rules of procedure may properly be suspended, modified,
revoked or waived at will by the legislators themselves. 74 This principle, however, does not
come into play in interpreting what the record of the proceedings shows was, or was not, done.
It is rather designed to test the validity of legislative action where the record shows a final action
in violation or disregard of legislative rules. 75 Utilizing the Senate and the House Rules as both
guidelines and yardstick, the BICAM here obviously did not adhere to the rule on what the
Report should contain.

Given all these irregularities that have apparently been engrafted into the BICAM system, and
which have been tolerated, if not accorded outright acceptance by everyone involved in or
conversant with, the institution, it may be asked: Why not leave well enough alone?

That these practices have remained unchallenged in the past does not justify our closing our
eyes and turning a deaf ear to them. Writ large is the spectacle of a mechanism ensconced in
the very heart of the people's legislative halls, that now stands indicted with the charge of
arrogating legislative powers unto itself through the use of dubious "shortcuts." Here, for the
people to judge, is the "mother of all shortcuts."

In the petitions at bench, we are confronted with the enactment of a tax law which was designed
to broaden the tax base. It is rote learning for any law student that as an attribute of sovereignty,
the power to tax is "the strongest of all the powers of government." 76 Admittedly, "for all its
plenitude, the power to tax is not unconfined. There are restrictions." 77 Were there none, then
the oft-quoted 1803 dictum of Chief Justice Marshall that "the power to tax involves the power to
destroy" 78 would be a truism. Happily, we can concur with, and the people can find comfort in,
the reassuring words of Mr. Justice Holmes: "The power to tax is not the power to destroy while
this Court sits." 79

Manakanaka, mayroong dumudulog dito sa Kataastaasang Hukuman na may kamangha-

manghang hinaing. Angkop na halimbawa ay ang mga petisyong iniharap ngayon sa amin.

Ang ilan sa kanila ay mga Senador na nais mapawalang bisa ang isang batas ukol sa buwis na
ipinasa mismo nila. Diumano ito ay hindi tumalima sa mga itinatadhana ng Saligang Batas.
Bukod sa rito, tutol sila sa mga bagong talata na isiningit ng "Bicameral Conference Committee"
na nagdagdag ng mga bagong bagay bagay at serbisyo na papatawan ng buwis. Ayon sa
kanila, ginampanan ng komiteng iyan ang gawain na nauukol sa buong Kongreso. Kung kaya't
ang nararapat na mangyari ay ihatol ng Kataastaasang Hukuman na malabis na
pagsasamantala sa sariling pagpapasiya ang ginawa ng Kongreso.

Bagama't bantulot kaming makialam sa isang kapantay na sangay ng Pamahalaan, hindi

naman nararapat na kami ay tumangging gampanan ang tungkulin na iniatas sa amin ng
Saligang Batas. Lalu't-lalo nang ang batas na kinauukulan ay maaaring makapinsala sa
nakararami sa sambayanan.

Sa ganang akin, itong batas na inihaharap sa amin ngayon, ay totoong labag sa Saligang
Batas, samakatuwid ay walang bisa. Nguni't ito ay nauukol lamang sa mga katiwalian na may
kinalaman sa paraan ng pagpapasabatas nito. Hindi namin patakaran ang makialam o
humadlang sa itinakdang gawain ng Saligang Batas sa Pangulo at sa Kongreso. Ang dalawang
sangay na iyan ng Pamahalaan ang higit na maalam ukol sa kung ang anumang panukalang
batas ay nararapat, kanais-nais o magagampanan; kung kaya't hindi kami nararapat na
maghatol o magpapasiya sa mga bagay na iyan. Ang makapapataw ng angkop na lunas sa
larangan na iyan ay ang mismong mga kinatawan ng sambayanan sa Kongreso.

Faced with this challenge of protecting the rights of the people by striking down a law that I
submit is unconstitutional and in the process, checking the wonted excesses of the Bicameral
Conference Committee system, I see in this case a suitable vehicle to discharge the Court's
Constitutional mandate and duty of declaring that there has indeed been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the Legislature.

Republic Act No. 7716, being unconstitutional and void, I find no necessity to rule on the
substantive issues as dealt with in the majority opinion as they have been rendered moot and
academic. These issues pertain to the intrinsic merits of the law. It is axiomatic that the wisdom,
desirability and advisability of enacting certain laws lie, not within the province of the Judiciary
but that of the political departments, the Executive and the Legislative. The relief sought by
petitioners from what they perceive to be the harsh and onerous effect of the EVAT on the
people is within their reach. For Congress, of which Senator-petitioners are a part, can furnish
the solution by either repealing or amending the subject law.

For the foregoing reasons, I VOTE to GRANT the petition.

PUNO, J.:

Petitioners plead that we affirm the self-evident proposition that they who make law should not
break the law. There are many evils whose elimination can be trusted to time. The evil of
lawlessness in lawmaking cannot. It must be slain on sight for it subverts the sovereignty of the
people.

First, a fast snapshot of the facts. On November 17, 1993, the House of Representatives
passed on third reading House Bill (H.B.) No. 11197 entitled "An Act Restructuring the Value
Added Tax (VAT) System to Widen its Tax Base and Enhance its Administration, Amending for
These Purposes Sections 99, 100, 102 to 108 and 110 Title V and 236, 237 and 238 of Title IX,
and Repealing Sections 113 and 114 of Title V, all of the National Internal Revenue Code as
Amended." The vote was 114 Yeas and 12 Nays. The next day, November 18, 1993, H.B.

No. 11197 was transmitted to the Senate for its concurrence by the Hon. Camilo L. Sabio,
Secretary General of the House of Representatives.

On February 7, 1994, the Senate Committee on Ways and Means submitted Senate Bill (S.B.)
No. 1630, recommending its approval "in substitution of Senate Bill No. 1129 taking into
consideration P.S. Res. No. 734 and House Bill No. 11197." On March 24, 1994, S.B. No. 1630
was approved on second and third readings. On the same day, the Senate, thru Secretary
Edgardo E. Tumangan, requested the House for a conference "in view of the disagreeing
provisions of S.B. No. 1630 and H.B. No. 11197." It designated the following as members of its
Committee: Senators Ernesto F. Herrera, Leticia R. Shahani, Alberto S. Romulo, John H.
Osmeña, Ernesto M. Maceda, Blas F. Ople, Francisco S. Tatad, Rodolfo G. Biazon, and
Wigberto S. Tañada. On the part of the House, the members of the Committee were:
Congressmen Exequiel B. Javier, James L. Chiongbian, Renato V. Diaz, Arnulfo P. Fuentebella,
Mariano M. Tajon, Gregorio Andolong, Thelma Almario, and Catalino Figueroa. After five (5)
meetings, 1 the Bicameral Conference Committee submitted its Report to the Senate and the
House stating:

CONFERENCE COMMITTEE REPORT

The Conference Committee on the disagreeing provisions of House Bill No.

11197, entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 105, 106, 107,
108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113 AND 114 OF TITLE V, ALL
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED

and Senate Bill No. 1630 entitled:

AN ACT RESTRUCTURING THE VALUE ADDED TAX (VAT) SYSTEM TO

WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION, AMENDING
FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104, 106, 107, 108
AND 110 OF TITLE IV, 112, 115, 117 AND 121 OF TITLE V, AND 236, 237,
AND 238 OF TITLE IX, AND REPEALING SECTIONS 113, 114, 116, 119 AND
120 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED AND FOR OTHER PURPOSES

having met, after full and free conference, has agreed to recommend and do
hereby recommend to their respective Houses that House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance with the
attached copy of the bill as reconciled and approved by the conferees.

Approved.

The Report was approved by the House on April 27, 1994. The Senate approved it on May 2,
1994. On May 5, 1994, the President signed the bill into law as R.A. No. 7716.

There is no question that the Bicameral Conference Committee did more than reconcile
differences between House Bill No. 11197 and Senate Bill No. 1630. In several instances, it
either added new provisions or deleted provisions already approved in House Bill No. 11197
and Senate Bill No. 1630. These insertions/deletions numbering twenty four (24) are specified in
detail by petitioner Tolentino as follows: 2

SOME SALIENT POINTS ON THE

(AMENDMENTS TO THE VATE LAW [EO 273])
SHOWING ADDITIONS/INSERTIONS MADE BY BICAMERAL
CONFERENCE COMMITTEE TO SB 1630 & HB 11197

I On Sec. 99 of the NIRC

H.B. 11197 amends this section by including, as liable to VAT, any person who in
the course of trade of business, sells, barters, or exchanges goods or
PROPERTIES and any person who LEASES PERSONAL PROPERTIES.

Senate Bill 1630 deleted Sec. 99 to give way for a new Section 99 - DEFINITION
OF TERMS - where eleven (11) terms were defined. A new Section, Section 99-
A was incorporated which included as subject to VAT, one who sells, exchanges,
barters PROPERTIES and one who imports PROPERTIES.

The BCC version (R.A. 7716) makes LESSORS of goods OR PROPERTIES and
importers of goods LIABLE to VAT.

II On Section 100 (VAT on sale of goods)

A. The H.B., S.B., and the BCC (R.A. 7716) all included sale of PROPERTIES as
subject to VAT.

The term GOODS or PROPERTIES includes the following:

HB (pls. refer SB (pls. refer BCC (RA 7716

to Sec. 2) To Sec. 1(4) (Sec. 2)

1
. Right or the 1. The same 1. The same

privilege to use    

patent, copyright,    

design, or model,    

plan, secret    

formula or process,    

goodwill trademark,    

tradebrand or other    

like property or    

right.    

     

2. Right or the 2. The same 2. The same

privilege to use    

in the Philippines    

of any industrial,    

commercial, or    

scientific equip-    

ment.    

     

3. Right or the 3. The same 3. The same

privilege to use    

motion picture    
films,

films, tapes and    

discs.    

     

4. Radio and 4. The same 4. In addition

Television time   to radio and

    television time the

    following were

    included:

    SATELLITE
TRANSMISSION

    and CABLE

    TELEVISION TIME

     

5. Other Similar 5. The Same 5. 'Other

 properties   similar properties'

    was deleted

     

6. - 6. - 6. Real

    properties held

    primarily for sale to

    customers or held

    for lease in the

    ordinary course or

    business

B. The HB and the BCC Bills has each a provision which includes THE SALE OF
GOLD TO BANGKO SENTRAL NG PILIPINAS as falling under the term Export
Sales, hence subject to 0% VAT. The Senate Bill does not contain such provision
(See Section 102-A thereof).

III. On Section 102

This section was amended to include as subject to a 10% VAT the gross receipts
derived from THE SALE OR EXCHANGE OF SERVICES, INCLUDING THE
USE OR LEASE OF PROPERTIES.

The SB, HB, and BCC have the same provisions on this.

However, on what are included in the term SALE OR EXCHANGE OF

SERVICES, the BCC included/inserted the following (not found in either the
House or Senate Bills):

1. Services of lessors of property WHETHER PERSONAL OR REAL; (See BCC

Report/Bill p. 7)

2. WAREHOUSING SERVICES (Ibid.,)

3. Keepers of RESTHOUSES, PENSION HOUSES, INNS, RESORTS (Ibid.,)

4. Common carriers by LAND, AIR AND SEA (Ibid.,)

5. SERVICES OF FRANCHISE GRANTEES OF TELEPHONE AND
TELEGRAPH;

6. RADIO AND TELEVISION BROADCASTING

7. ALL OTHER FRANCHISE GRANTEES EXCEPT THOSE UNDER SECTION

117 OF THIS CODE

8. SERVICES OF SURETY, FIDELITY, INDEMNITY, AND BONDING

COMPANIES.

9. Also inserted by the BCC (on page B thereof) is the LEASE OR USE OF OR
THE RIGHT TO USE OF SATTELITE TRANSMISSION AND CABLE
TELEVISION TIME

IV. On Section 103 (Exempt Transactions)

The BCC deleted subsection (f) in its entirety, despite its retention in both the
House and Senate Bills, thus under RA 7716, the 'printing, publication,
importation or sale of books and any newspaper, magazine, review, or bulletin
which appears at regular intervals with fixed prices for subscription and sale and
which is not devoted principally to the publication of advertisements' is subject to
VAT.

Subsection (g) was amended by the BCC (both Senate and House Bills did not)
by changing the word TEN to FIVE, thus: "Importation of passenger and/or cargo
vessel of more than five thousand ton to ocean going, including engine and spare
parts of said vessel to be used by the importer himself as operator thereof." In
short, importation of vessels with tonnage of more than 5 thousand is VAT
exempt.

Subsection L, was amended by the BCC by adding the qualifying phrase:

EXCEPT THOSE RENDERED BY PROFESSIONALS.

Subsection U which exempts from VAT "Transactions which are exempt under
special laws", was amended by BCC by adding the phrase: EXCEPT THOSE
GRANTED UNDER PD NOS. 66, 529, 972, 1491, and 1590, and NON-
ELECTRIC COOPERATIVES under RA 6938. This is the reason why
cooperatives are now subject to VAT.

While the SALE OF REAL PROPERTIES was included in the exempt

transactions under the House Bill, the BCC made a qualification by stating:

'(S) SALE OF REAL PROPERTIES NOT PRIMARILY HELD FOR SALE TO

CUSTOMERS OR HELD FOR LEASE IN THE ORDINARY COURSE OF TRADE
OR BUSINESS OR REAL PROPERTY UTILIZED FOR LOW-COST AND
SOCIALIZED HOUSING AS DEFINED BY R.A. NO. 7279 OTHERWISE
KNOWN AS THE URBAN DEVELOPMENT AND HOUSING ACT OF 1992 AND
OTHER RELATED LAWS.
Under the Senate Bill, the sale of real property utilized for low-cost and socialized
housing as defined by RA 7279, is one of the exempt transactions.

Under the House Bill, also exempt from VAT, is the SALE OF PROPERTIES
OTHER THAN THE TRANSACTIONS MENTIONED IN THE FOREGOING
PARAGRAPHS WITH A GROSS ANNUAL SALES AND/OR RECEIPTS OF
WHICH DOES NOT EXCEED THE AMOUNT PRESCRIBED IN THE
REGULATIONS TO BE PROMULGATED BY THE SECRETARY OF FINANCE
WHICH SHALL NOT BE LESS THAN P350,000.00 OR HIGHER THAN
P600,000.00 ... Under the Senate Bill, the amount is P240,000.00. The BCC
agreed at the amount of not less than P480,000.00 or more than P720,000.00
SUBJECT TO TAX UNDER SEC. 112 OF THIS CODE.

The BCC did not include, as VAT exempt, the sale or transfer of securities as
defined in the Revised Securities Act (BP 178) which was contained in both
Senate and House Bills.

V On Section 104

The phrase INCLUDING PACKAGING MATERIALS was included by the BCC on

Section 104 (A) (1) (B), and the phrase ON WHICH A VALUE-ADDED TAX HAS
BEEN ACTUALLY on Section 104 (A) (2).

These phrases are not contained in either House and Senate Bills.

VI On Section 107

Both House and Senate Bills provide for the payment of P500.00 VAT
registration fee. The BCC provides for P1,000.00 VAT fee.

VII On Section 112

While both the Senate and House Bills provide that a person whose sales or
receipts and are exempt under Section 103[w] of the Code, and who are not VAT
registered shall pay a tax equivalent to THREE (3) PERCENT of his gross
quarterly sales or receipts, the BCC inserted the phrase: THREE PERCENT
UPON THE EFFECTIVITY OF THIS ACT AND FOUR PERCENT (4%) TWO
YEARS THEREAFTER.

VIII On Section 115

Sec. 17 of SB 1630 Sec. 12 of House Bill 11197 amends this Section by

clarifying that common carriers by land, air or water FOR THE TRANSPORT OF
PASSENGERS are subject to Percentage Tax equivalent to 3% of their quarterly
gross sales.

The BCC adopted this and the House Bill's provision that the GROSS RECEIPTS
OF COMMON CARRIERS DERIVED FROM THEIR INCOMING AND
 OUTGOING FREIGHT SHALL NOT BE SUBJECTED TO THE LOCAL TAXES
IMPOSED UNDER RA 7160. The Senate Bill has no similar provision.

IX On Section 117

This Section has not been touched by either Senate and House Bills. But the
BCC amended it by subjecting franchises on ELECTRIC, GAS and WATER
UTILITIES A TAX OF TWO PERCENT (2%) ON GROSS RECEIPTS
DERIVED ... .

X On Section 121

The BCC adopted the Senate Bills' amendment to this section by subjecting to
5% premium tax on life insurance business.

The House Bill does not contain this provision.

XI Others

A) The House Bill does not contain any provision on the deferment of VAT
collection on Certain Goods and Services as does the Senate Bill (Section 19,
SB 1630). But although the Senate Bill authorizes the deferment on certain
goods and services for no longer than 3 years, there is no specific provision that
authorizes the President to EXCLUDE from VAT any of these. The BCC uses the
word EXCLUDE.

B) Moreover, the Senate Bill defers the VAT on services of actors and actresses
etc. for 3 years but the BCC defers it for only 2 years.

C) Section 18 of the BCC Bill (RA 7716) is an entirely new provision not
contained in the House/Senate Bills.

D) The period within which to promulgate the implementing rules and regulations
is within 60 days under SB 1630; No specific period under the House Bill, within
90 days under RA 7716 (BCC).

E) The House Bill provides for a general repealing clause i.e., all inconsistent
laws etc. are repealed. Section 16 of the Senate Bill expressly repeals Sections
113, 114, 116, 119 and 120 of the code. The same Senate Bill however contains
a general repealing clause in Sec. 21 thereof.

RA 7716 (BCC's Bill) expressly repeals Sections 113, 114 and 116 of the NIRC;
Article 39 (c) (d) and (e) of EO 226 and provides the repeal of Sec. 119 and 120
of the NIRC upon the expiration of two (2) years unless otherwise excluded by
the President."

The charge that the Bicameral Conference Committee added new provisions in the bills of the
two chambers is hardly disputed by respondents. Instead, respondents justify them. According
to respondents: (1) the Bicameral Conference Committee has an ex post veto power or a veto
after the fact of approval of the bill by both Houses; (2) the bill prepared by the Bicameral
Conference Committee, with its additions and deletions, was anyway approved by both Houses;
(3) it was the practice in past Congresses for conference committees to insert in bills approved
by the two Houses new provisions that were not originally contemplated by them; and (4) the
enrolled bill doctrine precludes inquiry into the regularity of the proceedings that led to the
enactment of R.A. 7716.

With due respect, I reject these contentions which will cave in on closer examination.

First. There is absolutely no legal warrant for the bold submission that a Bicameral Conference
Committee possesses the power to add/delete provisions in bills already approved on third
reading by both Houses or an ex post veto power. To support this postulate that can enfeeble
Congress itself, respondents cite no constitutional provision, no law, not even any rule or
regulation. 3 Worse, their stance is categorically repudiated by the rules of both the Senate and
the House of Representatives which define with precision the parameters of power of a
Bicameral Conference Committee. Thus, Section 209, Rule XII of the Rules of the Senate
provides;

In the event that the Senate does not agree with the House of Representatives
on the provision of any bill or joint resolution, the differences shall be settled by a
conference committee of both Houses which shall meet within ten days after their
composition.

Each Conference Committee Report shall contain a detailed and sufficiently

explicit statement of the changes in or amendments to the subject measure, and
shall be signed by the conferees. (Italics supplied)

The counterpart rule of the House of Representatives is cast in near identical language. Section
85 of the Rules of the House of Representatives pertinently provides:

In the event that the House does not agree with the Senate on the amendments
to any bill or joint resolution, the differences may be settled by a conference
committee of both chambers.

... . Each report shall contain a detailed, sufficiently explicit statement of the
changes in or amendments to the subject measure. (Italics supplied)

The Jefferson's Manual has been adopted 4 as a supplement to our parliamentary rules and
practice. Section 456 of Jefferson's Manual similarly confines the powers of a conference
committee, viz: 5

The managers of a conference must confine themselves to the differences

committed to them ... and may not include subjects not within the disagreements,
even though germane to a question in issue.

This rule of antiquity has been honed and honored in practice by the Congress of the United
States. Thus, it is chronicled by Floyd Biddick, Parliamentarian Emeritus of the United States
Senate, viz: 6
 Committees of conference are appointed for the sole purpose of compromising
and adjusting the differing and conflicting opinions of the two Houses and the
committees of conference alone can grant compromises and modify propositions
of either Houses within the limits of the disagreement. Conferees are limited to
the consideration of differences between the two Houses.

Conferees shall not insert in their report matters not committed to them by either
House, nor shall they strike from the bill matters agreed to by both Houses. No
matter on which there is nothing in either the Senate or House passed versions
of a bill may be included in the conference report and actions to the contrary
would subject the report to a point of order. (Italics ours)

In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House of
Representative to support the thesis of the respondents that a bicameral conference committee
is clothed with an ex post veto power.

But the thesis that a Bicameral Conference Committee can wield ex post veto power does not
only contravene the rules of both the Senate and the House. It wages war against our settled
ideals of representative democracy. For the inevitable, catastrophic effect of the thesis is to
install a Bicameral Conference Committee as the Third Chamber of our
Congress, similarly vested with the power to make laws but with the dissimilarity that its laws
are not the subject of a free and full discussion of both Houses of Congress. With such a
vagrant power, a Bicameral Conference Committee acting as a Third Chamber will be a
constitutional monstrosity.

It needs no omniscience to perceive that our Constitution did not provide for a Congress
composed of three chambers. On the contrary, section 1, Article VI of the Constitution provides
in clear and certain language: "The legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives ..." Note that in
vesting legislative power exclusively to the Senate and the House, the Constitution used the
word "shall." Its command for a Congress of two houses is mandatory. It is not mandatory
sometimes.

In vesting legislative power to the Senate, the Constitution means the Senate "... composed of
twenty-four Senators ... elected at large by the qualified voters of the Philippines ... ." 7 Similarly,
when the Constitution vested the legislative power to the House, it means the House "...
composed of not more than two hundred and fifty members ... who shall be elected from
legislative districts ... and those who ... shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations." 8 The Constitution thus, did not vest on
a Bicameral Conference Committee with an ad hoc membership the power to legislate for it
exclusively vested legislative power to the Senate and the House as co-equal bodies. To be
sure, the Constitution does not mention the Bicameral Conference Committees of Congress. No
constitutional status is accorded to them. They are not even statutory creations. They owe their
existence from the internal rules of the two Houses of Congress. Yet, respondents peddle the
disconcerting idea that they should be recognized as a Third Chamber of Congress and with ex
post veto power at that.

The thesis that a Bicameral Conference Committee can exercise law making power with ex
post veto power is freighted with mischief. Law making is a power that can be used for good or
for ill, hence, our Constitution carefully laid out a plan and a procedure for its exercise. Firstly, it
vouchsafed that the power to make laws should be exercised by no other body except the
Senate and the House. It ought to be indubitable that what is contemplated is the Senate acting
as a full Senate and the House acting as a full House. It is only when the Senate and the House
act as whole bodies that they truly represent the people. And it is only when they represent the
people that they can legitimately pass laws. Laws that are not enacted by the people's rightful
representatives subvert the people's sovereignty. Bicameral Conference Committees, with
their ad hoc character and limited membership, cannot pass laws for they do not represent the
people. The Constitution does not allow the tyranny of the majority. Yet, the respondents will
impose the worst kind of tyranny - the tyranny of the minority over the majority. Secondly, the
Constitution delineated in deft strokes the steps to be followed in making laws. The overriding
purpose of these procedural rules is to assure that only bills that successfully survive the
searching scrutiny of the proper committees of Congress and the full and unfettered
deliberations of both Houses can become laws. For this reason, a bill has to undergo three (3)
mandatory separate readings in each House. In the case at bench, the additions and deletions
made by the Bicameral Conference Committee did not enjoy the enlightened studies of
appropriate committees. It is meet to note that the complexities of modern day legislations have
made our committee system a significant part of the legislative process. Thomas Reed called
the committee system as "the eye, the ear, the hand, and very often the brain of the house."
President Woodrow Wilson of the United States once referred to the government of the United
States as "a government by the Chairman of the Standing Committees of Congress... " 9 Neither
did these additions and deletions of the Bicameral Conference Committee pass through the
coils of collective deliberation of the members of the two Houses acting separately. Due to this
shortcircuiting of the constitutional procedure of making laws, confusion shrouds the enactment
of R.A. No. 7716. Who inserted the additions and deletions remains a mystery. Why they were
inserted is a riddle. To use a Churchillian phrase, lawmaking should not be a riddle wrapped in
an enigma. It cannot be, for Article II, section 28 of the Constitution mandates the State to adopt
and implement a "policy of full public disclosure of all its transactions involving public interest."
The Constitution could not have contemplated a Congress of invisible and unaccountable John
and Mary Does. A law whose rationale is a riddle and whose authorship is obscure cannot bind
the people.

All these notwithstanding, respondents resort to the legal cosmetology that these additions and
deletions should govern the people as laws because the Bicameral Conference Committee
Report was anyway submitted to and approved by the Senate and the House of
Representatives. The submission may have some merit with respect to provisions agreed upon
by the Committee in the process of reconciling conflicts between S.B. No. 1630 and H.B. No.
11197. In these instances, the conflicting provisions had been previously screened by the
proper committees, deliberated upon by both Houses and approved by them. It is, however, a
different matter with respect to additions and deletions which were entirely new and which were
made not to reconcile inconsistencies between S.B. No. 1630 and H.B. No. 11197. The
members of the Bicameral Conference Committee did not have any authority to add new
provisions or delete provisions already approved by both Houses as it was not necessary to
discharge their limited task of reconciling differences in bills. At that late stage of law making,
the Conference Committee cannot add/delete provisions which can become laws without
undergoing the study and deliberation of both chambers given to bills on 1st, 2nd, and 3rd
readings. Even the Senate and the House cannot enact a law which will not undergo these
mandatory three (3) readings required by the Constitution. If the Senate and the House cannot
enact such a law, neither can the lesser Bicameral Conference Committee.

Moreover, the so-called choice given to the members of both Houses to either approve or
disapprove the said additions and deletions is more of an optical illusion. These additions and
deletions are not submitted separately for approval. They are tucked to the entire bill. The vote
is on the bill as a package, i.e., together with the insertions and deletions. And the vote is either
"aye" or "nay," without any further debate and deliberation. Quite often, legislators vote "yes"
because they approve of the bill as a whole although they may object to its amendments by the
Conference Committee. This lack of real choice is well observed by Robert Luce: 10

Their power lies chiefly in the fact that reports of conference committees must be
accepted without amendment or else rejected in toto. The impulse is to get done
with the matter and so the motion to accept has undue advantage, for some
members are sure to prefer swallowing unpalatable provisions rather than
prolong controversy. This is the more likely if the report comes in the rush of
business toward the end of a session, when to seek further conference might
result in the loss of the measure altogether. At any time in the session there is
some risk of such a result following the rejection of a conference report, for it may
not be possible to secure a second conference, or delay may give opposition to
the main proposal chance to develop more strength.

In a similar vein, Prof. Jack Davies commented that "conference reports are returned to
assembly and Senate on a take-it or leave-it-basis, and the bodies are generally placed in the
position that to leave-it is a practical impossibility." 11 Thus, he concludes that "conference
committee action is the most undemocratic procedure in the legislative process." 12

The respondents also contend that the additions and deletions made by the Bicameral
Conference Committee were in accord with legislative customs and usages. The argument does
not persuade for it misappreciates the value of customs and usages in the hierarchy of sources
of legislative rules of procedure. To be sure, every legislative assembly has the inherent right to
promulgate its own internal rules. In our jurisdiction, Article VI, section 16(3) of the Constitution
provides that "Each House may determine the rules of its proceedings ..." But it is hornbook law
that the sources of Rules of Procedure are many and hierarchical in character. Mason laid them
down as follows: 13

xxx xxx xxx

1. Rules of Procedure are derived from several sources. The principal sources
are as follows:

a. Constitutional rules.

b. Statutory rules or charter provisions.

c. Adopted rules.

d. Judicial decisions.

e. Adopted parliamentary authority.

f. Parliamentary law.

g. Customs and usages.

 2. The rules from the different sources take precedence in the order listed
above except that judicial decisions, since they are interpretations of rules from
one of the other sources, take the same precedence as the source interpreted.
Thus, for example, an interpretation of a constitutional provision takes
precedence over a statute.

3. Whenever there is conflict between rules from these sources the rule from the
source listed earlier prevails over the rule from the source listed, later. Thus,
where the Constitution requires three readings of bills, this provision controls
over any provision of statute, adopted rules, adopted manual, or of parliamentary
law, and a rule of parliamentary law controls over a local usage but must give
way to any rule from a higher source of authority. (Italics ours)

As discussed above, the unauthorized additions and deletions made by the Bicameral
Conference Committee violated the procedure fixed by the Constitution in the making of laws. It
is reasonless for respondents therefore to justify these insertions as sanctioned by customs and
usages.

Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any judicial
inquiry on whether Congress observed our constitutional procedure in the passage of R.A. No.
7716. The enrolled bill theory is a historical relic that should not continuously rule us from the
fossilized past. It should be immediately emphasized that the enrolled bill theory originated in
England where there is no written constitution and where Parliament is supreme. 14 In this
jurisdiction, we have a written constitution and the legislature is a body of limited powers.
Likewise, it must be pointed out that starting from the decade of the 40's, even American courts
have veered away from the rigidity and unrealism of the conclusiveness of an enrolled bill. Prof.
Sutherland observed: 15

xxx xxx xxx.

Where the failure of constitutional compliance in the enactment of statutes is not

discoverable from the face of the act itself but may be demonstrated by recourse
to the legislative journals, debates, committee reports or papers of the governor,
courts have used several conflicting theories with which to dispose of the issue.
They have held: (1) that the enrolled bill is conclusive and like the sheriff's return
cannot be attacked; (2) that the enrolled bill is prima facie correct and only in
case the legislative journal shows affirmative contradiction of the constitutional
requirement will the bill be held invalid, (3) that although the enrolled bill is prima
facie correct, evidence from the journals, or other extrinsic sources is admissible
to strike the bill down; (4) that the legislative journal is conclusive and the
enrolled bill is valid only if it accords with the recital in the journal and the
constitutional procedure.

Various jurisdictions have adopted these alternative approaches in view of strong dissent and
dissatisfaction against the philosophical underpinnings of the conclusiveness of an enrolled bill.
Prof. Sutherland further observed:

... Numerous reasons have been given for this rule. Traditionally, an enrolled bill
was 'a record' and as such was not subject to attack at common law. Likewise,
the rule of conclusiveness was similar to the common law rule of the inviolability
 of the sheriff's return. Indeed, they had the same origin, that is, the sheriff was an
officer of the king and likewise the parliamentary act was a regal act and no
official might dispute the king's word. Transposed to our democratic system of
government, courts held that as the legislature was an official branch of
government the court must indulge every presumption that the legislative act was
valid. The doctrine of separation of powers was advanced as a strong reason
why the court should treat the acts of a co-ordinate branch of government with
the same respect as it treats the action of its own officers; indeed, it was thought
that it was entitled to even greater respect, else the court might be in the position
of reviewing the work of a supposedly equal branch of government. When these
arguments failed, as they frequently did, the doctrine of convenience was
advanced, that is, that it was not only an undue burden upon the legislature to
preserve its records to meet the attack of persons not affected by the procedure
of enactment, but also that it unnecessarily complicated litigation and confused
the trial of substantive issues.

Although many of these arguments are persuasive and are indeed the basis for
the rule in many states today, they are not invulnerable to attack. The rule most
relied on - the sheriff's return or sworn official rule - did not in civil litigation
deprive the injured party of an action, for always he could sue the sheriff upon his
official bond. Likewise, although collateral attack was not permitted, direct attack
permitted raising the issue of fraud, and at a later date attack in equity was also
available; and that the evidence of the sheriff was not of unusual weight was
demonstrated by the fact that in an action against the sheriff no presumption of
its authenticity prevailed.

The argument that the enrolled bill is a 'record' and therefore unimpeachable is
likewise misleading, for the correction of records is a matter of established
judicial procedure. Apparently, the justification is either the historical one that the
king's word could not be questioned or the separation of powers principle that
one branch of the government must treat as valid the acts of another.

Persuasive as these arguments are, the tendency today is to avoid reaching results by artificial
presumptions and thus it would seem desirable to insist that the enrolled bill stand or fall on the
basis of the relevant evidence which may be submitted for or against it. (Italics ours)

Thus, as far back as the 1940's, Prof. Sutherland confirmed that "... the tendency seems to be
toward the abandonment of the conclusive presumption rule and the adoption of the third rule
leaving only a prima facie presumption of validity which may be attacked by any authoritative
source of information." 16

I am not unaware that this Court has subscribed to the conclusiveness of an enrolled bill as
enunciated in the 1947 lead case of Mabanag v. Lopez Vito, and reiterated in subsequent
cases. 17

With due respect, I submit that these rulings are no longer good law. Part of the ratiocination in
Mabanag states:

xxx xxx xxx

 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 old Code of Civil
Procedure, as amended by Act No. 2210, provides: 'Official documents' may be
proved as follows: * * * (2) the proceedings of the Philippine Commission, or of
any legislative 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 copies certified by the clerk or secretary,
or printed by their order; Provided, That in the case of Acts of the Philippine
Commission or the Philippine Legislature, when there is an existence of a copy
signed by the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment thereof.

Suffice to state that section 313 of the Old Code of Civil Procedure as amended by Act No.
2210 is no longer in our statute books. It has long been repealed by the Rules of
Court. Mabanag also relied on jurisprudence and authorities in the United States which are
under severe criticisms by modern scholars. Hence, even in the United States the
conclusiveness of an enrolled bill has been junked by most of the States. It is also true that as
late as last year, in the case of Philippine Judges Association v. Prado, op. cit., this Court still
relied on the conclusiveness of an enrolled bill as it refused to invalidate a provision of law on
the ground that it was merely inserted by the bicameral conference committee of both
Houses. Prado, however, is distinguishable. In Prado, the alleged insertion of the second
paragraph of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary does
not appear to be an uncontested fact. In the case at bench, the numerous additions/deletions
made by the Bicameral Conference Committee as detailed by petitioners Tolentino and Salonga
are not disputed by the respondents. In Prado, the Court was not also confronted with the
argument that it can no longer rely on the conclusiveness of an enrolled bill in light of the new
provision in the Constitution defining judicial power. More specifically, section 1 of Article VIII
now provides:

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 and enforceable,
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 any branch or
instrumentality of the Government. (Italics supplied)

Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional
Commission explained the sense and the reach of judicial power as follows: 18

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 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
pass judgment on matters of this nature.
 This is the background of paragraph 2 of Section 1, which means that the courts
cannot hereafter evade the duty to settle matters of this nature, by claiming that
such matters constitute political question. (Italics ours)

The Constitution cannot be any clearer. What it granted to this Court is not a mere power which
it can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as
a duty of this Court to strike down any act of a branch or instrumentality of government or any of
its officials 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 elected by the people.

It is, however, theorized that this provision is nothing new. 19 I beg to disagree for the view
misses the significant changes 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 between and among the three great branches of our
government - the Executive, the Legislative and the Judiciary. To upgrade the powers of the
Judiciary, the Constitutional Commission strengthened some more the independence of courts.
Thus, it further protected the security of tenure of the members of the Judiciary by providing "No
law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
Members." 20 It also guaranteed fiscal autonomy to the Judiciary. 21

More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council
which was tasked with screening the list of prospective appointees to the judiciary. 22 The power
of confirming appointments to the judiciary was also taken away from Congress. 23 The
President 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 24 and ninety (90) days from
the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies
in the lower courts. 25 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." 26 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 administrative functions." 27 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 powers of the President
clipped by the Constitution is his power to suspend the writ of habeas corpus and to proclaim
martial law. The exercise of this power is now subject to revocation by Congress. Likewise, the
sufficiency of the factual basis for the exercise of said power may be reviewed by this Court in
an appropriate proceeding filed by any citizen. 28

The provision defining judicial power as including 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 the Government" constitutes
the capstone of the efforts of the Constitutional Commission to upgrade the powers of this
Court vis-a-vis the other branches of government. This provision was dictated by our experience
under martial law which taught us that a stronger and more independent judiciary is needed to
abort abuses in government. As sharply stressed by petitioner Salonga, this provision is
distinctly Filipino and its interpretation should not be depreciated by undue reliance on
inapplicable foreign jurisprudence. It is thus crystal clear that unlike other Supreme Courts, this
Court has been mandated by our new Constitution to be a more active agent in annulling acts of
grave abuse of discretion committed by a branch of government or any of its officials. This new
role, however, will not compel the Court, appropriately defined by Prof. A. Bickel as the least
dangerous branch of government, to assume imperial powers and run roughshod over the
principle of separation of power for that is judicial tyranny by any language. But while respecting
the essential of the principle of separation of power, the Court is not to be restricted by its non-
essentials. Applied to the case at bench, by voiding R.A. No. 7716 on the ground that its
enactment violated the procedure imposed by the Constitution in lawmaking, the Court is not by
any means wrecking the wall separating the powers between the legislature and the judiciary.
For in so doing, the Court is not engaging in lawmaking which is the essence of legislative
power. But the Court's interposition of power should not be defeated by the conclusiveness of
the enrolled bill. A resort to this fiction will result in the enactment of laws not properly
deliberated upon and passed by Congress. Certainly, the enrolled bill theory was not conceived
to cover up violations of the constitutional procedure in law making, a procedure intended to
assure the passage of good laws. The conclusiveness of the enrolled bill can, therefore, be
disregarded for it is not necessary to preserve the principle of separation of powers.

In sum, I submit that in imposing to this Court the duty to annul acts of government committed
with grave abuse 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 determining what it cannot do; under the 1987 Constitution,
there is a shift in stress - this Court is mandated to approach constitutional violations not by
finding out what it should not do but what it must do. The Court must discharge this solemn duty
by not resuscitating a past that petrifies the present.

I vote to declare R.A. No. 7716 unconstitutional.

BELLOSILLO, J.:

With a consensus already reached after due deliberations, silence perhaps should be the better
part of discretion, except to vote. The different views and opinions expressed are so persuasive
and convincing; they are more than enough to sway the pendulum for or against the subject
petitions. The penetrating and scholarly dissertations of my brethren should dispense with
further arguments which may only confound and confuse even the most learned of men.

But there is a crucial point, a constitutional issue which, I submit, has been belittled, treated
lightly, if not almost considered insignificant and purposeless. It is elementary, as much as it is
fundamental. I am referring to the word "exclusively" appearing in Sec. 24, Art. VI, of our 1987
Constitution. This is regrettable, to say the least, as it involves a constitutional mandate which,
wittingly or unwittingly, has been cast aside as trivial and meaningless.

A comparison of the particular provision on the enactment of revenue bills in the U.S.
Constitution with its counterpart in the Philippine Constitution will help explain my position.

Under the U.S. Constitution, "[a]ll bills for raising revenue shall originate in the House of
Representatives; but the Senate may propose or concur with amendments as on other bills"
(Sec. 7, par. [1], Art. I). In contrast, our 1987 Constitution reads: "All appropriation, revenue or
tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills
shall originate exclusively in the House of Representatives, but the Senate may propose or
concur with amendments" (Sec. 24, Art. VI; Italics supplied).

As may be gleaned from the pertinent provision of our Constitution, all revenue bills are required
to originate "exclusively" in the House of Representatives. On the other hand, the U.S.
Constitution does not use the word "exclusively;" it merely says, "[a]ll bills for raising revenue
shall originate in the House of Representatives."

Since the term "exclusively" has already been adequately defined in the various opinions, as to
which there seems to be no dispute, I shall no longer offer my own definition.

Verily, the provision in our Constitution requiring that all revenue bills shall originate exclusively
from the Lower House is mandatory. The word "exclusively" is an "exclusive word," which is
indicative of an intent that the provision is mandatory. 1 Hence, all American authorities
expounding on the meaning and application of Sec. 7, par. (1), Art. I, of the U.S. Constitution
cannot be used in the interpretation of Sec. 24, Art. VI, of our 1987 Constitution which has a
distinct feature of "exclusiveness" all its own. Thus, when our Constitution absolutely requires -
as it is mandatory - that a particular bill should exclusively emanate from the Lower House,
there is no alternative to the requirement that the bill to become valid law must originate
exclusively from that House.

In the interpretation of constitutions, questions frequently arise as to whether particular sections

are mandatory or directory. The courts usually hesitate to declare that a constitutional provision
is directory merely in view of the tendency of the legislature to disregard provisions which are
not said to be mandatory. Accordingly, it is the general rule to regard constitutional provisions as
mandatory, and not to leave any discretion to the will of the legislature to obey or disregard
them. This presumption as to mandatory quality is usually followed unless it is unmistakably
manifest that the provisions are intended to be merely directory. So strong is the inclination in
favor of giving obligatory force to the terms of the organic law that it has even been said that
neither by the courts nor by any other department of the government may any provision of the
Constitution be regarded as merely directory, but that each and everyone of its provisions
should be treated as imperative and mandatory, without reference to the rules and
distinguishing between the directory and the mandatory statutes. 2

The framers of our 1987 Constitution could not have used the term "exclusively" if they only
meant to replicate and adopt in toto the U.S. version. By inserting "exclusively" in Sec. 24, Art.
VI, of our Constitution, their message is clear: they wanted it different, strong, stringent. There
must be a compelling reason for the inclusion of the word "exclusively," which cannot be an act
of retrogression but progression, an improvement on its precursor. Thus, "exclusively" must be
given its true meaning, its purpose observed and virtue recognized, for it could not have been
conceived to be of minor consequence. That construction is to be sought which gives effect to
the whole of the statute - its every word. Ut magis valeat quam pereat.

Consequently, any reference to American authorities, decisions and opinions, however wisely
and delicately put, can only mislead in the interpretation of our own Constitution. To refer to
them in defending the constitutionality of R.A. 7716, subject of the present petitions, is to argue
on a false premise, i.e., that Sec. 24, Art. VI, of our 1987 Constitution is, or means exactly, the
same as Sec. 7, par. (1), Art. I, of the U.S. Constitution, which is not correct. Hence, only a
wrong conclusion can be drawn from a wrong premise.
For example, it is argued that in the United States, from where our own legislature is patterned,
the Senate can practically substitute its own tax measure for that of the Lower House. Thus,
according to the Majority, citing an American case, "the validity of Sec. 37 which the Senate had
inserted in the Tariff Act of 1909 by imposing an ad valorem tax based on the weight of vessels,
was upheld against the claim that the revenue bill originated in the Senate in contravention of
Art. I, Sec. 7, of the U.S. Constitution." 3 In an effort to be more convincing, the Majority even
quotes the footnote in Introduction to American Government by F.A. Ogg and P.O. Ray which
reads -

Thus in 1883 the upper house struck out everything after the enacting clause of a
tariff bill and wrote its own measure, which the House eventually felt obliged to
accept. It likewise added 847 amendments to the Payne-Aldrich tariff act of 1909,
dictated the schedules of the emergency tariff act of 1921, rewrote an extensive
tax revision bill in the same year, and recast most of the permanent tariff bill of
1922 4 -

which in fact suggests, very clearly, that the subject revenue bill actually originated from the
Lower House and was only amended, perhaps considerably, by the Senate after it was passed
by the former and transmitted to the latter.

In the cases cited, where the statutes passed by the U.S. Congress were upheld, the revenue
bills did not actually originate from the Senate but, in fact, from the Lower House. Thus, the
Supreme Court of the United States, speaking through Chief Justice White in Rainey v. United
States 5 upheld the revenue bill passed by Congress and adopted the ruling of the lower court
that -

... the section in question is not void as a bill for raising revenue originating in the
Senate and not in the House of Representatives. It appears that the section was
proposed by the Senate as an amendment to a bill for raising revenue which
originated in the House. That is sufficient.

Flint v. Stone Tracy Co., 6 on which the Solicitor General heavily leans in his Consolidated
Comment as well as in his Memorandum, does not support the thesis of the Majority since the
subject bill therein actually originated from the Lower House and not from the Senate, and the
amendment merely covered a certain provision in the House bill.

In fine, in the cases cited which were lifted from American authorities, it appears that the
revenue bills in question actually originated from the House of Representatives and were
amended by the Senate only after they were transmitted to it. Perhaps, if the factual
circumstances in those cases were exactly the same as the ones at bench, then the subject
revenue or tariff bill may be upheld in this jurisdiction on the principle of substantial compliance,
as they were in the United States, except possibly in instances where the House bill undergoes
what is now referred to as "amendment by substitution," for that would be in derogation of our
Constitution which vests solely in the House of Representatives the power to initiate revenue
bills. A Senate amendment by substitution simply means that the bill in question did not in effect
originate from the lower chamber but from the upper chamber and not disguises itself as a mere
amendment of the House version.

It is also theorized that in the U.S., amendment by substitution is recognized. That may be true.
But the process may be validly effective only under the U.S. Constitution. The cases before us
present a totally different factual backdrop. Several months before the Lower House could even
pass HB No. 11197, P.S. Res. No. 734 and SB No. 1129 had already been filed in the Senate.
Worse, the Senate subsequently approved SB No. 1630 "in substitution of SB No. 1129, taking
into consideration P.S. Res. No. 734 and HB No. 11197," and not HB No. 11197 itself "as
amended." Here, the Senate could not have proposed or concurred with amendments because
there was nothing to concur with or amend except its own bill. It must be stressed that the
process of concurring or amending presupposes that there exists a bill upon which concurrence
may be based or amendments introduced. The Senate should have reported out HB No. 11197,
as amended, even if in the amendment it took into consideration SB No. 1630. It should not
have submitted to the Bicameral Conference Committee SB No. 1630 which, admittedly, did not
originate exclusively from the Lower House.

But even assuming that in our jurisdiction a revenue bill of the Lower House may be amended
by substitution by the Senate - although I am not prepared to accept it in view of Sec. 24, Art.
VI, of our Constitution - still R.A. 7716 could not have been the result of amendment by
substitution since the Senate had no House bill to speak of that it could amend when the Senate
started deliberating on its own version.

Be that as it may, I cannot rest easy on the proposition that a constitutional mandate calling for
the exclusive power and prerogative of the House of Representatives may just be discarded and
ignored by the Senate. Since the Constitution is for the observance of all - the judiciary as well
as the other departments of government - and the judges are sworn to support its provisions,
the courts are not at liberty to overlook or disregard its commands. And it is not fair and just to
impute to them undue interference if they look into the validity of legislative enactments to
determine whether the fundamental law has been faithfully observed in the process. It is their
duty to give effect to the existing Constitution and to obey all constitutional provisions
irrespective of their opinion as to the wisdom of such provisions.

The rule is fixed that the duty in a proper case to declare a law unconstitutional cannot be
declined and must be performed in accordance with the deliberate judgment of the tribunal
before which the validity of the enactment is directly drawn into question. When it is clear that a
statute transgresses the authority vested in the legislature by the Constitution, it is the duty of
the courts to declare the act unconstitutional because they cannot shirk from it without violating
their oaths of office. This duty of the courts to maintain the Constitution as the fundamental law
of the state is imperative and unceasing; and, as Chief Justice Marshal said, whenever a statute
is in violation of the fundamental law, the courts must so adjudge and thereby give effect to the
Constitution. Any other course would lead to the destruction of the Constitution. Since the
question as to the constitutionality of a statute is a judicial matter, the courts will not decline the
exercise of jurisdiction upon the suggestion that action might be taken by political agencies in
disregard of the judgment of the judicial tribunals. 7

It is my submission that the power and authority to originate revenue bills under our Constitution
is vested exclusively in the House of Representatives. Its members being more numerous than
those of the Senate, elected more frequently, and more directly represent the people, are
therefore considered better aware of the economic life of their individual constituencies. It is just
proper that revenue bills originate exclusively from them.

In this regard, we do not have to devote much time delving into American decisions and
opinions and invoke them in the interpretation of our own Constitution which is different from the
American version, particularly on the enactment of revenue bills. We have our own Constitution
couched in a language our own legislators thought best. Insofar as revenue bills are concerned,
our Constitution is not American; it is distinctively Filipino. And no amplitude of legerdemain can
detract from our constitutional requirement that all appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of local application, and private bills shall
originate exclusively in the House of Representatives, although the Senate may propose or
concur with amendments.

In this milieu, I am left no option but to vote to grant the petitions and strike down R.A. 7716 as
unconstitutional.
 III. Extent of and Limitations on Legislative Power
1. In re: Cunanan, 94 Phil. 534

Resolution             March 18, 1954

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of
1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.

Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners.
Office of the Solicitor General Juan R. Liwag for respondent.

DIOKNO, J.:

In recent years few controversial issues have aroused so much public interest and concern as
Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of
Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may
be deemed to have passed his examinations successfully, he must have obtained a general
average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule
127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different
bar examinations held since 1946 and the varying degree of strictness with which the
examination papers were graded, this court passed and admitted to the bar those candidates
who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in
1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent.

Believing themselves as fully qualified to practice law as those reconsidered and passed by this
court, and feeling conscious of having been discriminated against (See Explanatory Note to
R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than
those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate
Bill No. 12 which, among others, reduced the passing general average in bar examinations to
70 per cent effective since 1946. The President requested the views of this court on the bill.
Complying with that request, seven members of the court subscribed to and submitted written
comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not
override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the
provisions of the vetoed bill. Although the members of this court reiterated their unfavorable
views on the matter, the President allowed the bill to become a law on June 21, 1953 without his
signature. The law, which incidentally was enacted in an election year, reads in full as follows:

REPUBLIC ACT NO. 972

AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM

NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN
HUNDRED AND FIFTY-FIVE.

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:
 SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one
hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general
average of seventy per cent in any bar examinations after July fourth, nineteen hundred
and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventy-
one per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per
cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per
cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the
nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade
below fifty per cent in any subject, shall be allowed to take and subscribe the
corresponding oath of office as member of the Philippine Bar: Provided, however, That
for the purpose of this Act, any exact one-half or more of a fraction, shall be considered
as one and included as part of the next whole number.

SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject
in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed
to have passed in such subject or subjects and such grade or grades shall be included in
computing the passing general average that said candidate may obtain in any
subsequent examinations that he may take.

SEC. 3. This Act shall take effect upon its approval.

Enacted on June 21, 1953, without the Executive approval.

After its approval, many of the unsuccessful postwar candidates filed petitions for admission to
the bar invoking its provisions, while others whose motions for the revision of their examination
papers were still pending also invoked the aforesaid law as an additional ground for admission.
There are also others who have sought simply the reconsideration of their grades without,
however, invoking the law in question. To avoid injustice to individual petitioners, the court first
reviewed the motions for reconsideration, irrespective of whether or not they had invoked
Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If
they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if
declared valid, should be applied equally to all concerned whether they have filed petitions or
not. A complete list of the petitioners, properly classified, affected by this decision, as well as a
more detailed account of the history of Republic Act No. 972, are appended to this decision as
Annexes I and II. And to realize more readily the effects of the law, the following statistical data
are set forth:

(1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No.
972 total 1,168, classified as follows:

1946     (August) 206 121 18

1946     (November) 477 228 43
1947 749 340 0
1948 899 409 11
1949 1,218 532 164
1950 1,316 893 26
1951 2,068 879 196
 1952 2,738 1,033 426
1953   2,555     968     284
               TOTAL 12,230 5,421 1,168

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have
filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for
reconsideration.

(2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said
Republic Act. These candidates had each taken from two to five different examinations, but
failed to obtain a passing average in any of them. Consolidating, however, their highest grades
in different subjects in previous examinations, with their latest marks, they would be sufficient to
reach the passing average as provided for by Republic Act No. 972.

(3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of
which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had
individually presented motions for reconsideration which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending
because they could be favorably affected by Republic Act No. 972, — although as has been
already stated, this tribunal finds no sufficient reasons to reconsider their grades

UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972

Having been called upon to enforce a law of far-reaching effects on the practice of the legal
profession and the administration of justice, and because some doubts have been expressed as
to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole
question of whether or not Republic Act No. 972 is constitutional.

We have been enlightened in the study of this question by the brilliant assistance of the
members of the bar who have amply argued, orally an in writing, on the various aspects in
which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente
J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law,
and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz,
Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de
Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of
counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio
Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped
us in this task. The legal researchers of the court have exhausted almost all Philippine and
American jurisprudence on the matter. The question has been the object of intense deliberation
for a long time by the Tribunal, and finally, after the voting, the preparation of the majority
opinion was assigned to a new member in order to place it as humanly as possible above all
suspicion of prejudice or partiality.

Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those
candidates who suffered from insufficiency of reading materials and inadequate preparation.
Quoting a portion of the Explanatory Note of the proposed bill, its author Honorable Senator
Pablo Angeles David stated:
 The reason for relaxing the standard 75 per cent passing grade is the tremendous
handicap which students during the years immediately after the Japanese occupation
has to overcome such as the insufficiency of reading materials and the inadequacy of
the preparation of students who took up law soon after the liberation.

Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now
it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because
they suffered from "insufficiency of reading materials" and of "inadequacy of preparation."

By its declared objective, the law is contrary to public interest because it qualifies 1,094 law
graduates who confessedly had inadequate preparation for the practice of the profession, as
was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of
legal profession adequate preparation and efficiency, precisely more so as legal problem
evolved by the times become more difficult. An adequate legal preparation is one of the vital
requisites for the practice of law that should be developed constantly and maintained firmly. To
the legal profession is entrusted the protection of property, life, honor and civil liberties. To
approve officially of those inadequately prepared individuals to dedicate themselves to such a
delicate mission is to create a serious social danger. Moreover, the statement that there was an
insufficiency of legal reading materials is grossly exaggerated. There were abundant materials.
Decisions of this court alone in mimeographed copies were made available to the public during
those years and private enterprises had also published them in monthly magazines and annual
digests. The Official Gazette had been published continuously. Books and magazines published
abroad have entered without restriction since 1945. Many law books, some even with revised
and enlarged editions have been printed locally during those periods. A new set of Philippine
Reports began to be published since 1946, which continued to be supplemented by the addition
of new volumes. Those are facts of public knowledge.

Notwithstanding all these, if the law in question is valid, it has to be enforced.

The question is not new in its fundamental aspect or from the point of view of applicable
principles, but the resolution of the question would have been easier had an identical case of
similar background been picked out from the jurisprudence we daily consult. Is there any
precedent in the long Anglo-Saxon legal history, from which has been directly derived the
judicial system established here with its lofty ideals by the Congress of the United States, and
which we have preserved and attempted to improve, or in our contemporaneous judicial history
of more than half a century? From the citations of those defending the law, we can not find a
case in which the validity of a similar law had been sustained, while those against its validity
cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240
NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of
Guariña (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of
the original bill and which the postponement of the contested law respects.

This law has no precedent in its favor. When similar laws in other countries had been
promulgated, the judiciary immediately declared them without force or effect. It is not within our
power to offer a precedent to uphold the disputed law.

To be exact, we ought to state here that we have examined carefully the case that has been
cited to us as a favorable precedent of the law — that of Cooper (22 NY, 81), where the Court of
Appeals of New York revoked the decision of the Supreme court of that State, denying the
petition of Cooper to be admitted to the practice of law under the provisions of a statute
concerning the school of law of Columbia College promulgated on April 7, 1860, which was
declared by the Court of Appeals to be consistent with the Constitution of the state of New York.

It appears that the Constitution of New York at that time provided:

They (i.e., the judges) shall not hold any other office of public trust. All votes for either of
them for any elective office except that of the Court of Appeals, given by the Legislature
or the people, shall be void. They shall not exercise any power of appointment to public
office. Any male citizen of the age of twenty-one years, of good moral character, and
who possesses the requisite qualifications of learning and ability, shall be entitled to
admission to practice in all the courts of this State. (p. 93).

According to the Court of Appeals, the object of the constitutional precept is as follows:

Attorneys, solicitors, etc., were public officers; the power of appointing them had
previously rested with the judges, and this was the principal appointing power which they
possessed. The convention was evidently dissatisfied with the manner in which this
power had been exercised, and with the restrictions which the judges had imposed upon
admission to practice before them. The prohibitory clause in the section quoted was
aimed directly at this power, and the insertion of the provision" expecting the admission
of attorneys, in this particular section of the Constitution, evidently arose from its
connection with the object of this prohibitory clause. There is nothing indicative of
confidence in the courts or of a disposition to preserve any portion of their power over
this subject, unless the Supreme Court is right in the inference it draws from the use of
the word `admission' in the action referred to. It is urged that the admission spoken of
must be by the court; that to admit means to grant leave, and that the power of granting
necessarily implies the power of refusing, and of course the right of determining whether
the applicant possesses the requisite qualifications to entitle him to admission.

These positions may all be conceded, without affecting the validity of the act. (p. 93.)

Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that
the possession of a diploma of the school of law of Columbia College conferring the degree of
Bachelor of Laws was evidence of the legal qualifications that the constitution required of
applicants for admission to the Bar. The decision does not however quote the text of the law,
which we cannot find in any public or accessible private library in the country.

In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the
Court of Appeals said of the object of the law:

The motive for passing the act in question is apparent. Columbia College being an
institution of established reputation, and having a law department under the charge of
able professors, the students in which department were not only subjected to a formal
examination by the law committee of the institution, but to a certain definite period of
study before being entitled to a diploma of being graduates, the Legislature evidently,
and no doubt justly, considered this examination, together with the preliminary study
required by the act, as fully equivalent as a test of legal requirements, to the ordinary
examination by the court; and as rendering the latter examination, to which no definite
period of preliminary study was essential, unnecessary and burdensome.
 The act was obviously passed with reference to the learning and ability of the applicant,
and for the mere purpose of substituting the examination by the law committee of the
college for that of the court. It could have had no other object, and hence no greater
scope should be given to its provisions. We cannot suppose that the Legislature
designed entirely to dispense with the plain and explicit requirements of the Constitution;
and the act contains nothing whatever to indicate an intention that the authorities of the
college should inquire as to the age, citizenship, etc., of the students before granting a
diploma. The only rational interpretation of which the act admits is, that it was intended
to make the college diploma competent evidence as to the legal attainments of the
applicant, and nothing else. To this extent alone it operates as a modification of pre-
existing statutes, and it is to be read in connection with these statutes and with the
Constitution itself in order to determine the present condition of the law on the subject.
(p.89)

xxx     xxx     xxx

The Legislature has not taken from the court its jurisdiction over the question of
admission, that has simply prescribed what shall be competent evidence in certain cases
upon that question. (p.93)

From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be
clearly seen. Please note only the following distinctions:

(1) The law of New York does not require that any candidate of Columbia College who failed in
the bar examinations be admitted to the practice of law.

(2) The law of New York according to the very decision of Cooper, has not taken from the court
its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the
admission of any lawyer.

(3) The Constitution of New York at that time and that of the Philippines are entirely different on
the matter of admission of the practice of law.

In the judicial system from which ours has been evolved, the admission, suspension,
disbarment and reinstatement of attorneys at law in the practice of the profession and their
supervision have been disputably a judicial function and responsibility. Because of this attribute,
its continuous and zealous possession and exercise by the judicial power have been
demonstrated during more than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our Constitution to repeal, alter
supplement the rules promulgated by this Court regarding the admission to the practice of law,
to our judgment and proposition that the admission, suspension, disbarment and reinstatement
of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable.
The function requires (1) previously established rules and principles, (2) concrete facts, whether
past or present, affecting determinate individuals. and (3) decision as to whether these facts are
governed by the rules and principles; in effect, a judicial function of the highest degree. And it
becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the
petitions of these same individuals are attempted to be revoked or modified.

We have said that in the judicial system from which ours has been derived, the act of admitting,
suspending, disbarring and reinstating attorneys at law in the practice of the profession is
concededly judicial. A comprehensive and conscientious study of this matter had been
undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a
legislative enactment providing that Cannon be permitted to practice before the courts was
discussed. From the text of this decision we quote the following paragraphs:

This statute presents an assertion of legislative power without parallel in the history of
the English speaking people so far as we have been able to ascertain. There has been
much uncertainty as to the extent of the power of the Legislature to prescribe the
ultimate qualifications of attorney at law has been expressly committed to the courts, and
the act of admission has always been regarded as a judicial function. This act purports
to constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an
assertion of legislative power. (p. 444)

Under the Constitution all legislative power is vested in a Senate and Assembly. (Section
1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are
legislative in character, the Legislature is acting within its constitutional authority when it
sets up and prescribes such qualifications. (p. 444)

But when the Legislature has prescribed those qualifications which in its judgment will
serve the purpose of legitimate legislative solicitude, is the power of the court to impose
other and further exactions and qualifications foreclosed or exhausted? (p. 444)

Under our Constitution the judicial and legislative departments are distinct, independent,
and coordinate branches of the government. Neither branch enjoys all the powers of
sovereignty which properly belongs to its department. Neither department should so act
as to embarrass the other in the discharge of its respective functions. That was the
scheme and thought of the people setting upon the form of government under which we
exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4
Wis., 567. (p. 445)

The judicial department of government is responsible for the plane upon which the
administration of justice is maintained. Its responsibility in this respect is exclusive. By
committing a portion of the powers of sovereignty to the judicial department of our state
government, under 42a scheme which it was supposed rendered it immune from
embarrassment or interference by any other department of government, the courts
cannot escape responsibility fir the manner in which the powers of sovereignty thus
committed to the judicial department are exercised. (p. 445)

The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an
attache of the courts. The quality of justice dispense by the courts depends in no small
degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and
reproach to the administration of justice and bring the courts themselves into disrepute.
(p.445)

Through all time courts have exercised a direct and severe supervision over their bars,
at least in the English speaking countries. (p. 445)

After explaining the history of the case, the Court ends thus:
Our conclusion may be epitomized as follows: For more than six centuries prior to the
adoption of our Constitution, the courts of England, concededly subordinate to
Parliament since the Revolution of 1688, had exercise the right of determining who
should be admitted to the practice of law, which, as was said in Matter of the Sergeant's
at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the
courts and judicial power be regarded as an entity, the power to determine who should
be admitted to practice law is a constituent element of that entity. It may be difficult to
isolate that element and say with assurance that it is either a part of the inherent power
of the court, or an essential element of the judicial power exercised by the court, but that
it is a power belonging to the judicial entity and made of not only a sovereign institution,
but made of it a separate independent, and coordinate branch of the government. They
took this institution along with the power traditionally exercise to determine who should
constitute its attorney at law. There is no express provision in the Constitution which
indicates an intent that this traditional power of the judicial department should in any
manner be subject to legislative control. Perhaps the dominant thought of the framers of
our constitution was to make the three great departments of government separate and
independent of one another. The idea that the Legislature might embarrass the judicial
department by prescribing inadequate qualifications for attorneys at law is inconsistent
with the dominant purpose of making the judicial independent of the legislative
department, and such a purpose should not be inferred in the absence of express
constitutional provisions. While the legislature may legislate with respect to the
qualifications of attorneys, but is incidental merely to its general and unquestioned power
to protect the public interest. When it does legislate a fixing a standard of qualifications
required of attorneys at law in order that public interests may be protected, such
qualifications do not constitute only a minimum standard and limit the class from which
the court must make its selection. Such legislative qualifications do not constitute the
ultimate qualifications beyond which the court cannot go in fixing additional qualifications
deemed necessary by the course of the proper administration of judicial functions. There
is no legislative power to compel courts to admit to their bars persons deemed by them
unfit to exercise the prerogatives of an attorney at law. (p. 450)

Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite

likely true that the legislature may exercise the power of appointment when it is in
pursuance of a legislative functions. However, the authorities are well-nigh unanimous
that the power to admit attorneys to the practice of law is a judicial function. In all of the
states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our
investigation reveals, attorneys receive their formal license to practice law by their
admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex
parte Secombre, 19 How. 9,15 L. Ed. 565; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366;
Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P.
646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep.
1030, 20 Ann. Cas. 413.

The power of admitting an attorney to practice having been perpetually exercised by the
courts, it having been so generally held that the act of the court in admitting an attorney
to practice is the judgment of the court, and an attempt as this on the part of the
Legislature to confer such right upon any one being most exceedingly uncommon, it
seems clear that the licensing of an attorney is and always has been a purely judicial
function, no matter where the power to determine the qualifications may reside. (p. 451)
In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of
the Senate of that State, 180 NE 725, said:

It is indispensible to the administration of justice and to interpretation of the laws that

there be members of the bar of sufficient ability, adequate learning and sound moral
character. This arises from the need of enlightened assistance to the honest, and
restraining authority over the knavish, litigant. It is highly important, also that the public
be protected from incompetent and vicious practitioners, whose opportunity for doing
mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y.
456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege
burden with conditions." One is admitted to the bar "for something more than private
gain." He becomes an "officer of the court", and ,like the court itself, an instrument or
agency to advance the end of justice. His cooperation with the court is due "whenever
justice would be imperiled if cooperation was withheld." Without such attorneys at law
the judicial department of government would be hampered in the performance of its
duties. That has been the history of attorneys under the common law, both in this
country and England. Admission to practice as an attorney at law is almost without
exception conceded to be a judicial function. Petition to that end is filed in courts, as are
other proceedings invoking judicial action. Admission to the bar is accomplish and made
open and notorious by a decision of the court entered upon its records. The
establishment by the Constitution of the judicial department conferred authority
necessary to the exercise of its powers as a coordinate department of government. It is
an inherent power of such a department of government ultimately to determine the
qualifications of those to be admitted to practice in its courts, for assisting in its work,
and to protect itself in this respect from the unfit, those lacking in sufficient learning, and
those not possessing good moral character. Chief Justice Taney stated succinctly and
with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled,
by the rules and practice of common-law courts, that it rests exclusively with the court to
determine who is qualified to become one of its officers, as an attorney and counselor,
and for what cause he ought to be removed." (p.727)

In the case of Day and others who collectively filed a petition to secure license to practice the
legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part:

In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test
oath for attorneys to be unconstitutional, explained the nature of the attorney's office as
follows: "They are officers of the court, admitted as such by its order, upon evidence of
their possessing sufficient legal learning and fair private character. It has always been
the general practice in this country to obtain this evidence by an examination of the
parties. In this court the fact of the admission of such officers in the highest court of the
states to which they, respectively, belong for, three years preceding their application, is
regarded as sufficient evidence of the possession of the requisite legal learning, and the
statement of counsel moving their admission sufficient evidence that their private and
professional character is fair. The order of admission is the judgment of the court that the
parties possess the requisite qualifications as attorneys and counselors, and are entitled
to appear as such and conduct causes therein. From its entry the parties become
officers of the court, and are responsible to it for professional misconduct. They hold
their office during good behavior, and can only be deprived of it for misconduct
ascertained and declared by the judgment of the court after opportunity to be heard has
been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a
 mere ministerial power. It is the exercise of judicial power, and has been so held in
numerous cases. It was so held by the court of appeals of New York in the matter of the
application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and
Counselors", said that court, "are not only officers of the court, but officers whose duties
relate almost exclusively to proceedings of a judicial nature; and hence their
appointment may, with propriety, be entrusted to the court, and the latter, in performing
his duty, may very justly considered as engaged in the exercise of their appropriate
judicial functions." (pp. 650-651).

We quote from other cases, the following pertinent portions:

Admission to practice of law is almost without exception conceded everywhere to be the

exercise of a judicial function, and this opinion need not be burdened with citations in
this point. Admission to practice have also been held to be the exercise of one of the
inherent powers of the court. — Re Bruen, 102 Wash. 472, 172 Pac. 906.

Admission to the practice of law is the exercise of a judicial function, and is an inherent
power of the court. — A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See
Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512.

On this matter there is certainly a clear distinction between the functions of the judicial and
legislative departments of the government.

The distinction between the functions of the legislative and the judicial departments is
that it is the province of the legislature to establish rules that shall regulate and govern in
matters of transactions occurring subsequent to the legislative action, while the judiciary
determines rights and obligations with reference to transactions that are past or
conditions that exist at the time of the exercise of judicial power, and the distinction is a
vital one and not subject to alteration or change either by legislative action or by judicial
decree.

The judiciary cannot consent that its province shall be invaded by either of the other
departments of the government. — 16 C.J.S., Constitutional Law, p. 229.

If the legislature cannot thus indirectly control the action of the courts by requiring of
them construction of the law according to its own views, it is very plain it cannot do so
directly, by settling aside their judgments, compelling them to grant new trials, ordering
the discharge of offenders, or directing what particular steps shall be taken in the
progress of a judicial inquiry. — Cooley's Constitutional Limitations, 192.

In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a
general average of 70 per cent without falling below 50 per cent in any subject, be admitted in
mass to the practice of law, the disputed law is not a legislation; it is a judgment — a judgment
revoking those promulgated by this Court during the aforecited year affecting the bar candidates
concerned; and although this Court certainly can revoke these judgments even now, for
justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive
department, that may be so. Any attempt on the part of any of these departments would be a
clear usurpation of its functions, as is the case with the law in question.
That the Constitution has conferred on Congress the power to repeal, alter or supplement the
rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid
argument. Section 13, article VIII of the Constitution provides:

Section 13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice, and procedure in all courts, and the admission to the practice of law.
Said rules shall be uniform for all courts of the same grade and shall not diminish,
increase or modify substantive rights. The existing laws on pleading, practice and
procedure are hereby repealed as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the same. The Congress shall have
the power to repeal, alter, or supplement the rules concerning pleading, practice, and
procedure, and the admission to the practice of law in the Philippines. — Constitution of
the Philippines, Art. VIII, sec. 13.

It will be noted that the Constitution has not conferred on Congress and this Tribunal equal
responsibilities concerning the admission to the practice of law. the primary power and
responsibility which the Constitution recognizes continue to reside in this Court. Had Congress
found that this Court has not promulgated any rule on the matter, it would have nothing over
which to exercise the power granted to it. Congress may repeal, alter and supplement the rules
promulgated by this Court, but the authority and responsibility over the admission, suspension,
disbarment and reinstatement of attorneys at law and their supervision remain vested in the
Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit
that Congress substitute or take the place of this Tribunal in the exercise of its primary power on
the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar
or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law.
Its power is limited to repeal, modify or supplement the existing rules on the matter, if according
to its judgment the need for a better service of the legal profession requires it. But this power
does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys
at law and supervise the practice of the legal profession.

Being coordinate and independent branches, the power to promulgate and enforce rules for the
admission to the practice of law and the concurrent power to repeal, alter and supplement them
may and should be exercised with the respect that each owes to the other, giving careful
consideration to the responsibility which the nature of each department requires. These powers
have existed together for centuries without diminution on each part; the harmonious delimitation
being found in that the legislature may and should examine if the existing rules on the admission
to the Bar respond to the demands which public interest requires of a Bar endowed with high
virtues, culture, training and responsibility. The legislature may, by means of appeal,
amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power,
which has the inherent responsibility for a good and efficient administration of justice and the
supervision of the practice of the legal profession, should consider these reforms as the
minimum standards for the elevation of the profession, and see to it that with these reforms the
lofty objective that is desired in the exercise of its traditional duty of admitting, suspending,
disbarring and reinstating attorneys at law is realized. They are powers which, exercise within
their proper constitutional limits, are not repugnant, but rather complementary to each other in
attaining the establishment of a Bar that would respond to the increasing and exacting
necessities of the administration of justice.

The case of Guariña (1913) 24 Phil., 37, illustrates our criterion. Guariña took examination and
failed by a few points to obtain the general average. A recently enacted law provided that one
who had been appointed to the position of Fiscal may be admitted to the practice of law without
a previous examination. The Government appointed Guariña and he discharged the duties of
Fiscal in a remote province. This tribunal refused to give his license without previous
examinations. The court said:

Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks
admission to the bar, without taking the prescribed examination, on the ground that he
holds the office of provincial fiscal for the Province of Batanes.

Section 2 of Act No. 1597, enacted February 28, 1907, is as follows:

Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety,
entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings
in the Philippine Islands," is hereby amended to read as follows:

1. Those who have been duly licensed under the laws and orders of the Islands under
the sovereignty of Spain or of the United States and are in good and regular standing as
members of the bar of the Philippine Islands at the time of the adoption of this
code; Provided, That any person who, prior to the passage of this act, or at any time
thereafter, shall have held, under the authority of the United States, the position of
justice of the Supreme Court, judge of the Court of First Instance, or judge or associate
judge of the Court of Land Registration, of the Philippine Islands, or the position of
Attorney General, Solicitor General, Assistant Attorney General, assistant attorney in the
office of the Attorney General, prosecuting attorney for the City of Manila, city attorney of
Manila, assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province,
or assistant attorney for the Moro Province, may be licensed to practice law in the courts
of the Philippine Islands without an examination, upon motion before the Supreme Court
and establishing such fact to the satisfaction of said court.

The records of this court disclose that on a former occasion this appellant took, and
failed to pass the prescribed examination. The report of the examining board, dated
March 23, 1907, shows that he received an average of only 71 per cent in the various
branches of legal learning upon which he was examined, thus falling four points short of
the required percentage of 75. We would be delinquent in the performance of our duty to
the public and to the bar, if, in the face of this affirmative indication of the deficiency of
the applicant in the required qualifications of learning in the law at the time when he
presented his former application for admission to the bar, we should grant him license to
practice law in the courts of these Islands, without first satisfying ourselves that despite
his failure to pass the examination on that occasion, he now "possesses the necessary
qualifications of learning and ability."

But it is contented that under the provisions of the above-cited statute the applicant is
entitled as of right to be admitted to the bar without taking the prescribed examination
"upon motion before the Supreme Court" accompanied by satisfactory proof that he has
held and now holds the office of provincial fiscal of the Province of Batanes. It is urged
that having in mind the object which the legislator apparently sought to attain in enacting
the above-cited amendment to the earlier statute, and in view of the context generally
and especially of the fact that the amendment was inserted as a proviso in that section
of the original Act which specifically provides for the admission of certain candidates
without examination. It is contented that this mandatory construction is imperatively
 required in order to give effect to the apparent intention of the legislator, and to the
candidate's claim de jure to have the power exercised.

And after copying article 9 of Act of July 1, 1902 of the Congress of the United States, articles 2,
16 and 17 of Act No. 136, and articles 13 to 16 of Act 190, the Court continued:

Manifestly, the jurisdiction thus conferred upon this court by the commission and
confirmed to it by the Act of Congress would be limited and restricted, and in a case
such as that under consideration wholly destroyed, by giving the word "may," as used in
the above citation from Act of Congress of July 1, 1902, or of any Act of Congress
prescribing, defining or limiting the power conferred upon the commission is to that
extent invalid and void, as transcending its rightful limits and authority.

Speaking on the application of the law to those who were appointed to the positions
enumerated, and with particular emphasis in the case of Guariña, the Court held:

In the various cases wherein applications for the admission to the bar under the
provisions of this statute have been considered heretofore, we have accepted the fact
that such appointments had been made as satisfactory evidence of the qualifications of
the applicant. But in all of those cases we had reason to believe that the applicants had
been practicing attorneys prior to the date of their appointment.

In the case under consideration, however, it affirmatively appears that the applicant was
not and never had been practicing attorney in this or any other jurisdiction prior to the
date of his appointment as provincial fiscal, and it further affirmatively appears that he
was deficient in the required qualifications at the time when he last applied for admission
to the bar.

In the light of this affirmative proof of his defieciency on that occasion, we do not think
that his appointment to the office of provincial fiscal is in itself satisfactory proof if his
possession of the necessary qualifications of learning and ability. We conclude therefore
that this application for license to practice in the courts of the Philippines, should be
denied.

In view, however, of the fact that when he took the examination he fell only four points
short of the necessary grade to entitle him to a license to practice; and in view also of
the fact that since that time he has held the responsible office of the governor of the
Province of Sorsogon and presumably gave evidence of such marked ability in the
performance of the duties of that office that the Chief Executive, with the consent and
approval of the Philippine Commission, sought to retain him in the Government service
by appointing him to the office of provincial fiscal, we think we would be justified under
the above-cited provisions of Act No. 1597 in waiving in his case the ordinary
examination prescribed by general rule, provided he offers satisfactory evidence of his
proficiency in a special examination which will be given him by a committee of the court
upon his application therefor, without prejudice to his right, if he desires so to do, to
present himself at any of the ordinary examinations prescribed by general rule. — (In
re Guariña, pp. 48-49.)
It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs
exclusively to this Court, and the law passed by Congress on the matter is of permissive
character, or as other authorities say, merely to fix the minimum conditions for the license.

The law in question, like those in the case of Day and Cannon, has been found also to suffer
from the fatal defect of being a class legislation, and that if it has intended to make a
classification, it is arbitrary and unreasonable.

In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until
December 31 of that year, to grant license for the practice of law to those students who began
studying before November 4, 1897, and had studied for two years and presented a diploma
issued by a school of law, or to those who had studied in a law office and would pass an
examination, or to those who had studied for three years if they commenced their studies after
the aforementioned date. The Supreme Court declared that this law was unconstitutional being,
among others, a class legislation. The Court said:

This is an application to this court for admission to the bar of this state by virtue of
diplomas from law schools issued to the applicants. The act of the general assembly
passed in 1899, under which the application is made, is entitled "An act to amend
section 1 of an act entitled "An act to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as
it appears in the enacting clause, consists in the addition to the section of the following:
"And every application for a license who shall comply with the rules of the supreme court
in regard to admission to the bar in force at the time such applicant commend the study
of law, either in a law or office or a law school or college, shall be granted a license
under this act notwithstanding any subsequent changes in said rules". — In re Day et al,
54 N.Y., p. 646.

. . . After said provision there is a double proviso, one branch of which is that up to
December 31, 1899, this court shall grant a license of admittance to the bar to the holder
of every diploma regularly issued by any law school regularly organized under the laws
of this state, whose regular course of law studies is two years, and requiring an
attendance by the student of at least 36 weeks in each of such years, and showing that
the student began the study of law prior to November 4, 1897, and accompanied with
the usual proofs of good moral character. The other branch of the proviso is that any
student who has studied law for two years in a law office, or part of such time in a law
office, "and part in the aforesaid law school," and whose course of study began prior to
November 4, 1897, shall be admitted upon a satisfactory examination by the examining
board in the branches now required by the rules of this court. If the right to admission
exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights
and privileges upon the persons named therein, and establishes rules of legislative
creation for their admission to the bar. (p. 647.)

Considering the proviso, however, as an enactment, it is clearly a special legislation,

prohibited by the constitution, and invalid as such. If the legislature had any right to
admit attorneys to practice in the courts and take part in the administration of justice, and
could prescribe the character of evidence which should be received by the court as
conclusive of the requisite learning and ability of persons to practice law, it could only be
done by a general law, persons or classes of persons. Const. art 4, section 2. The right
to practice law is a privilege, and a license for that purpose makes the holder an officer
 of the court, and confers upon him the right to appear for litigants, to argue causes, and
to collect fees therefor, and creates certain exemptions, such as from jury services and
arrest on civil process while attending court. The law conferring such privileges must be
general in its operation. No doubt the legislature, in framing an enactment for that
purpose, may classify persons so long as the law establishing classes in general, and
has some reasonable relation to the end sought. There must be some difference which
furnishes a reasonable basis for different one, having no just relation to the subject of
the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People,
155 Ill. 98, 40 N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255.

The length of time a physician has practiced, and the skill acquired by experience, may
furnish a basis for classification (Williams vs. People 121 Ill. 48, II N.E. 881); but the
place where such physician has resided and practiced his profession cannot furnish
such basis, and is an arbitrary discrimination, making an enactment based upon it void
(State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature undertakes to say
what shall serve as a test of fitness for the profession of the law, and plainly, any
classification must have some reference to learning, character, or ability to engage in
such practice. The proviso is limited, first, to a class of persons who began the study of
law prior to November 4, 1897. This class is subdivided into two classes — First, those
presenting diplomas issued by any law school of this state before December 31, 1899;
and, second, those who studied law for the period of two years in a law office, or part of
the time in a law school and part in a law office, who are to be admitted upon
examination in the subjects specified in the present rules of this court, and as to this
latter subdivision there seems to be no limit of time for making application for admission.
As to both classes, the conditions of the rules are dispensed with, and as between the
two different conditions and limits of time are fixed. No course of study is prescribed for
the law school, but a diploma granted upon the completion of any sort of course its
managers may prescribe is made all-sufficient. Can there be anything with relation to the
qualifications or fitness of persons to practice law resting upon the mere date of
November 4, 1897, which will furnish a basis of classification. Plainly not. Those who
began the study of law November 4th could qualify themselves to practice in two years
as well as those who began on the 3rd. The classes named in the proviso need spend
only two years in study, while those who commenced the next day must spend three
years, although they would complete two years before the time limit. The one who
commenced on the 3rd. If possessed of a diploma, is to be admitted without examination
before December 31, 1899, and without any prescribed course of study, while as to the
other the prescribed course must be pursued, and the diploma is utterly useless. Such
classification cannot rest upon any natural reason, or bear any just relation to the subject
sought, and none is suggested. The proviso is for the sole purpose of bestowing
privileges upon certain defined persons. (pp. 647-648.)

In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature
attempted by law to reinstate Cannon to the practice of law, the court also held with regards to
its aspect of being a class legislation:

But the statute is invalid for another reason. If it be granted that the legislature has
power to prescribe ultimately and definitely the qualifications upon which courts must
admit and license those applying as attorneys at law, that power can not be exercised in
the manner here attempted. That power must be exercised through general laws which
will apply to all alike and accord equal opportunity to all. Speaking of the right of the
 Legislature to exact qualifications of those desiring to pursue chosen callings, Mr.
Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233,
32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to
follow any lawful calling, business or profession he may choose, subject only to such
restrictions as are imposed upon all persons of like age, sex, and condition." This right
may in many respects be considered as a distinguishing feature of our republican
institutions. Here all vocations are all open to every one on like conditions. All may be
pursued as sources of livelihood, some requiring years of study and great learning for
their successful prosecution. The interest, or, as it is sometimes termed, the "estate"
acquired in them — that is, the right to continue their prosecution — is often of great
value to the possessors and cannot be arbitrarily taken from them, any more than their
real or personal property can be thus taken. It is fundamental under our system of
government that all similarly situated and possessing equal qualifications shall enjoy
equal opportunities. Even statutes regulating the practice of medicine, requiring
medications to establish the possession on the part of the application of his proper
qualifications before he may be licensed to practice, have been challenged, and courts
have seriously considered whether the exemption from such examinations of those
practicing in the state at the time of the enactment of the law rendered such law
unconstitutional because of infringement upon this general principle. State vs. Thomas
Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101
Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468.

This law singles out Mr. Cannon and assumes to confer upon him the right to practice
law and to constitute him an officer of this Court as a mere matter of legislative grace or
favor. It is not material that he had once established his right to practice law and that one
time he possessed the requisite learning and other qualifications to entitle him to that
right. That fact in no matter affect the power of the Legislature to select from the great
body of the public an individual upon whom it would confer its favors.

A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court
to admit to the practice of law without examination, all who had served in the military or
naval forces of the United States during the World War and received a honorable
discharge therefrom and who (were disabled therein or thereby within the purview of the
Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924
and whose disability is rated at least ten per cent thereunder at the time of the passage
of this Act." This Act was held |unconstitutional on the ground that it clearly violated the
quality clauses of the constitution of that state. In re Application of George W.
Humphrey, 178 Minn. 331, 227 N.W. 179.

A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151-

153 as follows:

The general rule is well settled by unanimity of the authorities that a classification to be
valid must rest upon material differences between the person included in it and those
excluded and, furthermore, must be based upon substantial distinctions. As the rule has
sometimes avoided the constitutional prohibition, must be founded upon pertinent and
real differences, as distinguished from irrelevant and artificial ones. Therefore, any law
that is made applicable to one class of citizens only must be based on some substantial
difference between the situation of that class and other individuals to which it does not
apply and must rest on some reason on which it can be defended. In other words, there
 must be such a difference between the situation and circumstances of all the members
of the class and the situation and circumstances of all other members of the state in
relation to the subjects of the discriminatory legislation as presents a just and natural
cause for the difference made in their liabilities and burdens and in their rights and
privileges. A law is not general because it operates on all within a clause unless there is
a substantial reason why it is made to operate on that class only, and not generally on
all. (12 Am. Jur. pp. 151-153.)

Pursuant to the law in question, those who, without a grade below 50 per cent in any subject,
have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5
per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5
per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as
members of the Bar, notwithstanding that the rules require a minimum general average of 75
per cent, which has been invariably followed since 1950. Is there any motive of the nature
indicated by the abovementioned authorities, for this classification ? If there is none, and none
has been given, then the classification is fatally defective.

It was indicated that those who failed in 1944, 1941 or the years before, with the general
average indicated, were not included because the Tribunal has no record of the unsuccessful
candidates of those years. This fact does not justify the unexplained classification of
unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the
exclusion of those who failed before said years under the same conditions justified. The fact that
this Court has no record of examinations prior to 1946 does not signify that no one concerned
may prove by some other means his right to an equal consideration.

To defend the disputed law from being declared unconstitutional on account of its retroactivity, it
is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972
intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted
admission to the bar of candidates who did not obtain the general average of 75 per cent: in
1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more;
in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per
cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the
Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the
passing averages during those years were all that could be objected to or criticized. Now, it is
desired to undo what had been done — cancel the license that was issued to those who did not
obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to
do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented
is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946
to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of
judgment of the Court that is being cured, and to complete the cure of this infirmity, the
effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955,
increasing each year the general average by one per cent, with the order that said candidates
be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the
law attempts to amend and correct are not the rules promulgated, but the will or judgment of the
Court, by means of simply taking its place. This is doing directly what the Tribunal should have
done during those years according to the judgment of Congress. In other words, the power
exercised was not to repeal, alter or supplement the rules, which continue in force. What was
done was to stop or suspend them. And this power is not included in what the Constitution has
granted to Congress, because it falls within the power to apply the rules. This power
corresponds to the judiciary, to which such duty been confided.
Article 2 of the law in question permits partial passing of examinations, at indefinite intervals.
The grave defect of this system is that it does not take into account that the laws and
jurisprudence are not stationary, and when a candidate finally receives his certificate, it may
happen that the existing laws and jurisprudence are already different, seriously affecting in this
manner his usefulness. The system that the said law prescribes was used in the first bar
examinations of this country, but was abandoned for this and other disadvantages. In this case,
however, the fatal defect is that the article is not expressed in the title will have temporary effect
only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite
time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls
article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity
affect the entire law.

Laws are unconstitutional on the following grounds: first, because they are not within the
legislative powers of Congress to enact, or Congress has exceeded its powers; second,
because they create or establish arbitrary methods or forms that infringe constitutional
principles; and third, because their purposes or effects violate the Constitution or its basic
principles. As has already been seen, the contested law suffers from these fatal defects.

Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is
unconstitutional and therefore, void, and without any force nor effect for the following reasons,
to wit:

1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations
of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was
exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these
candidates, depriving this Tribunal of the opportunity to determine if they are at present already
prepared to become members of the Bar. It obliges the Tribunal to perform something contrary
to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional
responsibility of the Supreme Court.

2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of
these 810 candidates, without having examined their respective examination papers, and
although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable
reasons, only this Court and no other may revise and alter them. In attempting to do it directly
Republic Act No. 972 violated the Constitution.

3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and
supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they
ought to be, intended to regulate acts subsequent to its promulgation and should tend to
improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum
norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers
to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial
functions and is essential to a worthy administration of justice. It is therefore the primary and
inherent prerogative of the Supreme Court to render the ultimate decision on who may be
admitted and may continue in the practice of law according to existing rules.

4. The reason advanced for the pretended classification of candidates, which the law makes, is
contrary to facts which are of general knowledge and does not justify the admission to the Bar of
law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a
class legislation.
5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the
Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is
void.

6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the
examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in
those years, shall continue in force.

RESOLUTION

Upon mature deliberation by this Court, after hearing and availing of the magnificent and
impassioned discussion of the contested law by our Chief Justice at the opening and close of
the debate among the members of the Court, and after hearing the judicious observations of two
of our beloved colleagues who since the beginning have announced their decision not to take
part in voting, we, the eight members of the Court who subscribed to this decision have voted
and resolved, and have decided for the Court, and under the authority of the same:

1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946
to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without
force and effect.

2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the
examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid
and shall continue to be in force, in conformity with section 10, article VII of the Constitution.

Consequently, (1) all the above-mentioned petitions of the candidates who failed in the
examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the
examinations of 1953 obtained a general average of 71.5 per cent or more, without having a
grade below 50 per cent in any subject, are considered as having passed, whether they have
filed petitions for admission or not. After this decision has become final, they shall be permitted
to take and subscribe the corresponding oath of office as members of the Bar on the date or
dates that the chief Justice may set. So ordered.

Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.

 2. Ang Nars Party List v. Executive Secretary, G.R. No. 215746, October 8, 2019

G.R. No. 215746, October 08, 2019

ANG NARS PARTY-LIST, REPRESENTED BY CONGRESSWOMAN LEAH

PRIMITIVA G. SAMACO-PAQUIZ, AND PUBLIC SERVICES LABOR
INDEPENDENT CONFEDERATION, REPRESENTED BY ITS GENERAL
SECRETARY ANNIE E. GERON, PETITIONERS, v. THE EXECUTIVE
SECRETARY, THE SECRETARY OF BUDGET AND MANAGEMENT, AND THE
SECRETARY OF HEALTH, RESPONDENTS.

DECISION

CARPIO, J.:

The Case

Ang Nars Party-List (Ang Nars), represented by Congresswoman Leah Primitiva G.

Samaco-Paquiz (Rep. Paquiz), and Public Services Labor In,dependent
Confederation (PSLINK), represented by its General Secretary Annie E. Geron
(Geron), filed a petition for certiorari and mandamus 1 before this Court assailing the
validity of Section 6 of Executive Order No. 811 2 (EO No. 811), with prayer for the
Court to compel the Executive Secretary, the Secretary of Budget and Management,
and the Secretary of Health (respondents) to implement Section 32 of Republic Act
No. 91733 (R.A. No. 9173), otherwise known as the Philippine Nursing Act of 2002.

Ang Nars is "an accredited party-list organization that promotes the socio-
economic, political, and professional rights of nurses with the responsibility and
accountability to provide safe and quality nursing care to the Filipino people," 4 while
PSLINK is "an umbrella organization of 481 public sector unions representing over
85,000 public sectors in the government." 5 Ang Nars and PSLINK are collectively
referred to here as petitioners.

The Antecedent Facts

On 21 October 2002, then President Gloria Macapagal-Arroyo (President Macapagal-

Arroyo) approved R.A. No. 9173. Section 32 of R.A. No. 9173 provides:

SEC. 32. Salary. - In order to enhance the general welfare, commitment to service

and professionalism of nurses, the minimum base pay of nurses working in the
public health institutions shall not be lower than salary grade 15 prescribed
under Republic Act No. 6758, otherwise known as the "Compensation and
Classification Act of 1989": Provided, That for nurses working in local government
units, adjustments to their salaries shall be in accordance with Section 10 of the
said law. (Emphasis supplied)
On 28 July 2008, then Senate President Juan Ponce Enrile and then Speaker of the
House of Representatives Prospero C. Nograles approved Joint Resolution No. 4,
authorizing the President of the Philippines "to Modify the Compensation and
Position Classification System of Civilian Personnel and the Base Pay Schedule of
Military and Uniformed Personnel in the Government, and For Other Purposes."
Joint Resolution No. 4 is a consolidation of House Joint Resolution No. 36 and
Senate Joint Resolution No. 26 that were adopted by the House of Representatives
and the Senate on 1 June 2009 and 2 June 2009, respectively.

On 17 June 2009, President Macapagal-Arroyo approved Joint Resolution No. 4,

which provides:

xxxx

(16) Amendment of Existing Laws - The provisions of all laws, decrees,

executive orders, corporate charters, rules, regulations, circulars, approvals and
other issuances or parts thereof that are inconsistent with the provisions of
this Joint Resolution such as, but not limited to Republic Act No. 4670,
Republic Act No. 7160, Republic Act No. 7305, Republic Act No. 8439, Republic Act
No. 8551, Executive Order No. 107 dated June 10, 1999, Republic Act No. 9286,
Republic Act No. 9166, Republic Act No. 9173 and Republic Act No. 9433 are
hereby amended.

All provisions of laws, executive orders, corporate charters, implementing

rules and regulations prescribing salary grades for government officials
and employees other than those in Section 8 of Republic Act No. 6758 are
hereby repealed. (Emphasis supplied)

Also on 17 June 2009, President Macapagal-Arroyo signed EO No. 811 to implement

Joint Resolution No. 4. Section 6 of EO No. 811 provides:

SECTION 6. Changes in Position Titles and Salary Grade Assignments of Certain

Positions -

The position titles and salary grade assignments of the entry levels of the following
positions are hereby modified:

Salary Grade
Position Title
From To

Teacher I 10 11

Nurse I 10 11

Medical Officer I 14 16

Accountant I 11 12
 [Legal Officer I] Attorney I [14] 16

The DBM, in coordination with the Civil Service Commission (CSC), shall review the
other levels of the above-listed positions and other classes of positions to determine
their appropriate levels, and to allocate them to their proper salary grades.

Accordingly, the DBM, in coordination with the CSC, shall update the Index of
Occupational Services, Occupational Groups, Classes, and Salary Grades, in
accordance with organizational, technological, professional and other developments.
(Emphasis supplied)

On 21 May 2014, Rep. Paquiz wrote a letter 6 to then Secretary Enrique T. Ona
(Secretary Ona) of the Department of Health (DOH) inquiring about the non-
implementation of Section 32 of R.A. No. 9173 mandating that the salary base pay
for nurses shall be Salary Grade 15. On even date, Rep. Paquiz wrote a similar
letter7 to then Secretary Florencio B. Abad (Secretary Abad) of the Department of
Budget and Management (DBM). Rep. Paquiz's identical letters to the DOH and the
DBM stated:

Greetings of peace and good health to you and your bureaucracy!

ANG NARS advocates for "KALUSUGAN PARA SA BAYAN" through an empowered

health workforce. We are passionate in our advocacy of improving the plight of our
nurses especially those who struggle in precarious working conditions.

The enactment of Republic Act No. 9173, otherwise known as "The Philippine
Nursing Act of 2002", mandated that the minimum base pay of nurses shall be at
least Salary Grade 15, to wit:

SEC. 32. Salary. In order to enhance the general welfare, commitment to service
and professionalism of nurses[,] the minimum base pay of nurses working in the
public health institutions shall not be lower than salary grade 15 prescribed under
Republic Act No. 6758, otherwise known as the "Compensation and Classification
Act of 1989": Provided, That for nurses working in local government units,
adjustments to their salaries shall be in accordance with Section 10 of the said law.

Thus, I would like to inquire about the non-implementation of Salary Grade

15 as minimum base pay for nurses despite the fact that this provision has been in
effect since 2002. x x x.

I am hoping that we will all work together towards a healthier nation. 8 (Emphasis in
the original)

On 27 May 2014, Secretary Ona replied, as follows:

xxxx
As per your communication letter received by our office last May 26, 2014, we
would like to clarify that our staffing standards and salary grade classification at the
Department is based on policies and guidelines issued by the Department of Budget
and Management (DBM), pursuant to Republic Act No. 6758 "Compensation and
Classification Act of 1989" and Senate Joint Resolution No. 26 "Joint Resolution
Authorizing the President of the Philippines to Modify the Compensation and
Classification System of Civilian Personnel...".

The Manual on Position Classification and Compensation by the DBM prescribes a

detailed classification process for every occupational group identified. This manual
states as a general rule that: "only the duties and responsibilities of the position are
considered in position classification..". Therefore, our agency has carefully studied
and analyzed each of our position classification based on the tasks and weight of
responsibility assigned for each position. Thus, a Nurse I position with a salary
grade 11 might have less complicated tasks and fewer range of responsibility than a
Nurse II with salary grade 15.9

Secretary Ona recommended that Rep. Paquiz direct her inquiries about the
implementation of R.A. No. 9173 to the DBM.

On 26 May 2014, the DBM, through its then Officer-in-Charge and Assistant
Director Edgardo M. Macaranas, replied to Rep. Paquiz stating that:

xxxx

Under Section 34 of National Budget Circular No. 521 implementing Senate and
House of Representatives Joint Resolution No. 4, s. 2009, certain medical and allied
medical positions requiring PRC license examination were re-allocated to give
meaning to the long-honored truism of "equal pay for equal work" wherein positions
which have substantially equal qualifications, skills, effort and responsibility under
similar conditions shall be paid similar salaries. In particular, the entry level for
Nurses in government hospitals was upgraded from SG-10 to SG 11.

While the law expressly provides for SG-15 as the entry level for Nurses, its
implementation would distort the hierarchical relationships of medical, and allied
positions, as well as other positions in the bureaucracy.

Likewise, the proposed upgrading of entry level 4,787 Nurse I positions would
require additional PS costs of Php438,109,687 per annum that would further strain
the government coffers. Necessarily, the corresponding higher level nurses and
other allied medical positions will require additional PS cost.

Meanwhile, the DBM has conducted a salary survey of the private sector for
benchmark jobs predominant in the government like Nurses, Medical Officers and
allied medical positions, among others. The survey results shall be the basis for
recommendations for future salary adjustments.10
On 13 October 2014, Rep. Paquiz wrote then Secretary Leila De Lima (Secretary De
Lima) of the Department of Justice (DOJ) requesting for a legal opinion on whether
the DBM can disregard the implementation of Section 32 of R.A. No. 9173. 11 On 22
October 2014, Secretary De Lima declined to render a legal opinion and replied, as
follows:

xxxx

With regret, we have to decline to render the opinion requested.

It must be stressed, at the outset, that the ruling assailed was rendered by the
bureau under the DBM specifically empowered to "classify positions and determine
appropriate salaries for specific position classes and review the compensation
benefits programs of agencies" and "design job evaluation programs." Since the
DBM Secretary not only has "supervision and control" but also the power of
"jurisdiction over all bureaus, offices, agencies and corporations" under his
Department, which power necessarily include[s] the authority to review, approve,
reverse or modify acts and decisions of subordinate officials or units, the DBM
Secretary, more than any other government official, is in the best position to assist
your query. This is especially because it is the DBM that is mandated to be
responsible both "for the formulation and implementation of the National Budget
with the goal of attaining our national socioeconomic plans and objectives" and "for
the efficient and sound utilization of government funds and revenues to effectively
achieve our country's development objectives."

Moreover, this Department cannot rule on the issue raised without passing upon
National Budget Circular No. 521 which was issued by the DBM. Pursuant to settled
practice and precedents, however, the Secretary of Justice does not render opinion
or express any comment on questions involving the interpretation and application
of duly issued administrative rules and regulations, unless requested by the
promulgating agency, since such matters are best left to the determination of the
said agency by reason of its knowledge of the specific intent and purposes of the
issuance and the extent of the application thereof.

Finally, even if we want to rule on your query, we cannot. Under Section 38 of R.A.
No. 9173, it is the Board of Nursing and the Professional Regulation Commission, in
coordination with the DBM and Department of Health, among other concerned
agencies, that is mandated to issue the law's Implementing Rule[]s and
Regulations, and had, in fact, already issued one through Board of Nursing's Board
Resolution No. 425, s. 2003.

Being essentially advisory in nature, the opinion of the Secretary of Justice need
not bind the Board of Nursing (and the DBM), if that be their pleasure. As the
government agencies primarily responsible for the implementation, administration
and enforcement of the law (and Senate and House Resolution No. 4, s. 2009),
they may, if they so decide, formally adopt the position they take on the issue
raised and assume responsibility therefor.
It is suggested that you elevate the matter to the DBM Secretary. 12

Finding the replies of the DOH, DBM, and DOJ unsatisfactory, petitioners filed this
petition before the Court.

The Issues

Petitioners raised the following issues in their petition:

(1) Whether respondents committed grave abuse of discretion and exceeded the authority granted by
Joint Resolution No. 4 when they downgraded the salary grade for government nurses in
Executive Order No.
811;

(2) Whether Joint Resolution No. 4 (Series of 2009) of the Senate and the House of Representatives
amended Section 32 of the Philippine Nursing Act of 2002; and

(3) Whether respondents committed grave abuse of discretion in asserting that the entry level for
government nurses should only be Salary Grade 11 and disregarding the provisions of [RA No.
9173].13

Petitioners allege that Joint Resolution No. 4 authorized the President to modify the
compensation and position classification system of civilian personnel and the base
pay schedule of military and uniformed personnel in the government. However,
petitioners assert that Joint Resolution No. 4 did not authorize the President to
revise the salary grade system under Republic Act No. 6758 14 or the Compensation
and Position Classification Act of 1989, which in tum, was amended by R.A. No.
9173 which provided that the minimum base pay for government nurses, except for
those employed under the Local Government Code, would be Salary Grade 15.
Petitioners point out that Section 6 of Joint Resolution No. 4 expressly states that
"[nothing] in [this] Joint Resolution shall be interpreted to reduce, diminish or, in
any way, alter the benefits provided for in existing laws on Magna Carta benefits for
specific officials and employees in government, regardless of whether said benefits
have been already received or have yet to be implemented. 15 Petitioners point out
that EO No. 811, being an administrative issuance, must be consistent with laws
and should not amend or modify the law.

Petitioners further claim that Joint Resolution No. 4 did not amend Section 32 of
R.A. No. 9173 and did not lower the entry level of nurses to Salary Grade 11.
According to petitioners, respondents ignored and failed to implement Section 32 of
R.A. No. 9173 despite the issuance of the Implementing Rules and Regulations of
R.A. No. 9173 through the Board of Nursing's Board Resolution No. 425, series of
2003. In addition, petitioners argue that EO No. 811 violated the principle of non-
diminution of salaries stipulated in Joint Resolution No. 4 since EO No. 811 also
repealed Section 32 of R.A. No. 9173, a repeal that is beyond the authority given to
the President under Joint Resolution No. 4.
In its Comment, the Office of the Solicitor General (OSG), representing
respondents, questions petitioners' legal standing to file this petition. The OSG
alleges that petitioners have not identified their personal stake in the outcome of
the controversy. According to the OSG, petitioners are not nurses employed in the
government who are entitled to the benefits under Section 32 of R.A. No. 9173 and
are not directly affected by EO No. 811.

The OSG alleges that petitioners availed of the wrong remedy in filing this petition
for certiorari and mandamus before this Court instead of a petition for declaratory
relief. Further, the OSG asserts that, granting petitioners availed of the correct
remedy, they violated the doctrine of hierarchy of courts in filing the petition
directly with this Court.

The OSG argues that Section 32 of R.A. No. 9173 was amended, not by EO No.
811, but by Joint Resolution No. 4 adopted by both the Senate and the House of
Representatives which has the force and effect of a law. The OSG adds that the
issuance of EO No. 811 fixing the entry level of government nurses at Salary Grade
11 is a valid delegation of power under Joint Resolution No. 4. In addition, the OSG
argues that there is no diminution in the salary of nurses because the minimum
base pay under EO No. 811 is higher than the minimum base pay under Section 32
of R.A. No. 9173.

The OSG further alleges that petitioners cannot avail of the remedy of mandamus.
The OSG asserts that Joint Resolution No. 4 repealed Section 32 of R.A. No. 9173.
In addition, the DBM never implemented Section 32 of R.A. No. 9173 because its
implementation would create inequality and distortion in the hierarchical
relationships of the medical and allied positions and the other positions in the
bureaucracy. Citing the occupational service of Medicine and Health Service, the
OSG points out that the implementation of Section 32 of R.A. No. 9173 would result
to a situation where a Nurse I would have a benchmark pay of Salary Grade 15
while a doctor designated as Medical Officer I would only have a benchmark pay of
Salary Grade 14. Further comparing it to other positions, the OSG states that a
lawyer designated as Legal Officer I has only a benchmark pay of Salary Grade 14.
As such, the implementation of Section 32 of R.A. No. 9173 would cause inequality
in compensation among government workers.

In their Reply, petitioners maintain that Rep. Paquiz has a legal standing to file the
petition because as a party-list representative, she represents both government
and private nurses and it is her right and duty to protect the welfare of her
constituents. On the other hand, Geron represents the members of PSLINK who are
government nurses. In addition, petitioners argue that they are taxpayers whose
rights have been infringed by respondents' grave abuse of discretion in disregarding
Section 32 of R.A. No. 9173 as they are deprived of quality health care with the
enforcement of Joint Resolution No. 4 and EO No. 811 which are invalid.

Petitioners likewise maintain that certiorari is the proper remedy in this case under
the expanded jurisdiction of judicial power under Section 1, Article VIII of the 1987
Constitution. In addition, the delivery of health care services by the government is
of paramount importance. Petitioners claim that the implementation of Section 32
of R.A. No. 9173 would have positive effects on nurses and could help prevent the
flight of nurses abroad that results to a dearth of competent nurses in the public
and private sectors in the country. Petitioners allege that Rep. Paquiz wrote both
the DBM and the DOH but she did not receive any satisfactory response, thus
justifying her filing of this petition before this Court. Petitioners further allege that
respondents committed grave abuse of discretion in failing to implement Section 32
of R.A. No. 9173 and in issuing EO No. 811.

The Ruling of this Court

We uphold the continued validity of Section 32 of R.A. No. 9173 but dismiss
petitioners' prayer to compel respondents to implement Section 32 of R.A. No.
9173.

Legal Standing to File the Petition

Respondents assail petitioners' legal standing before this Court.

Section 2, Rule 3 of the 1997 Rules of Civil Procedure provides that every action
must be prosecuted or defended in the name of the real party in interest. In a
private suit, the real party in interest is one who stands to be benefited or injured
by the judgment in the suit or the party entitled to the reliefs sought in the
suit.16 In a public suit, the plaintiff acts as a representative of the general
public.17 This Court has explained:

x x x. He may be a person who is affected no differently from any other person. He

could be suing as a "stranger," or in the category of a "citizen," or "taxpayer." In
either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or
"taxpayer."18

We first discuss the legal standing of PSLINK.

PSLINK is "a confederation of public sector unions of Philippine government

employees, from different national government agencies, state universities and
colleges, local government units, government-financial institutions, health,
teachers, and special sectors." 19 PSLINK includes government nurses among its
members. However, PSLINK is an unincorporated association. As such, it cannot be
considered a juridical person or an entity authorized by law that can be a party to a
civil action.20 PSLINK lacks legal capacity to sue in its own name or in the name of
the members of its association without proper authorization or valid authority from
its members.21 Hence, PSLINK has no legal standing to file this petition.

On the other hand, Rep. Paquiz filed the petition as the representative of Ang Nars
Party-List that represents both government nurses who are directly affected by EO
No. 811 as well as nurses from the private sector. The Court, explaining the legal
standing of members of the Legislature, has ruled that this legal standing should
pertain to questions on the validity of any official action that they claim to infringe
on the prerogatives, powers, and privileges vested by the Constitution to their
office.22 Thus, the Court has declared:

We emphasize that in a legislators' suit, those Members of Congress who are

challenging the official act have standing only to the extent that the alleged
violation impinges on their right to participate in the exercise of the powers of the
institution of which they are members. Legislators have the standing to maintain
inviolate the prerogatives, powers, and privileges vested by the Constitution in their
office and are allowed to sue to question the validity of any official action, which
they claim infringes their prerogatives as legislators. As legislators, they must
clearly show that there was a direct injury to their persons or the institution to
which they belong.23

Nevertheless, there are instances when the Court, in its discretion, waives the
requirements of locus standi, citing the transcendental importance of the cases
before it as well as their far-reaching implications. 24 Indeed, the Court has held that
the requirement of locus standi, being a mere procedural technicality, can be
waived by the Court in the exercise of its discretion. 25 The Court has ruled
that locus standi is a matter of procedure, and it has allowed some cases to be
brought not by parties who have been personally injured by the operation of a law
or any other government act but by concerned citizens, taxpayers or voters who
actually sue in the public interest.26

In Bayan Muna v. Romulo,27 the Court ruled that petitioner, through its party-list
representatives who filed the suit as concerned citizens, had the locus
standi because they had complied with the qualifying conditions or specific
requirements exacted under the locus standi rule.28 As citizens, their interest in the
subject matter of the petition was direct and personal. 29 In the case before us, Rep.
Paquiz is duly-elected as party-list representative of Ang Nars Party-List which
seeks to be the voice of the nurses in the country. Although she will not suffer
direct injury because of the non-implementation of R.A. No. 9173, her interest is
direct insofar as she is the duly-elected representative of nurses in the count. As
such, the Court recognizes Rep. Paquiz's legal standing to file this petition on behalf
of her constituents who are directly affected by the non-implementation of Section
32 of R.A. No. 9173.

Hierarchy of Courts and Petitioners' Remedy

To justify their action to file this petition directly with this Court, petitioners cite the
transcendental importance of the issues involved.

The doctrine on the hierarchy of courts states that petitions for certiorari and
prohibition, which fall under the concurrent jurisdiction of the regional trial courts,
the higher courts, and this Court, must first be brought to the lowest court with
jurisdiction.30 In Rayos v. The City of Manila,31 the Court held:
Indeed, this Court, the Court of Appeals and the Regional Trial Courts exercise
concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction. However, such concurrence in jurisdiction
does not give petitioners unbridled freedom of choice of court forum. In Heirs of
Bertuldo Hinog v. Melicor [495 Phil. 422, 432 (2005)], citing People v.
Cuaresma [254 Phil. 418, 426-427 (1989)], the Court held:
This Court's original jurisdiction to issue writs of certiorari is not
exclusive. It is shared by this Court with [the] Regional Trial Courts and with the
Court of Appeals. The concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute, unrestrained freedom of
choice of the court to which application therefor will be directed. There is after all
a hierarchy of courts. That hierarchy is determinative of the venue of appeals,
and also serves as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court, and those against
the latter, with the Court of Appeals. A direct invocation of the Supreme
Court's original jurisdiction to issue these writs should be allowed only
when there are special and important reasons therefor, clearly and
specifically set out in the petition. This is [an] established policy. It is a policy
necessary to prevent inordinate demands upon the Court's time and attention which
are better devoted to those matters within its exclusive jurisdiction, and to prevent
further over-crowding of the Court's docket. 32 (Emphasis in the original)

This rule, however, is subject to exceptions. In The Diocese of Bacolod v.

Commission on Elections,33 the Court stated:

Thus, the doctrine of hierarchy of courts is not an iron-clad rule. This [C]ourt has
"full discretionary power to take cognizance and assume jurisdiction [over] special
civil actions for certiorari ... filed directly with it for exceptionally compelling
reasons or if warranted by the nature of the issues clearly and specifically raised in
the petition." As correctly pointed out by petitioners, we have provided exceptions
to this doctrine:

xxxx

A second exception is when the issues involved are of transcendental importance.

In these cases, the imminence and clarity of the threat to fundamental
constitutional rights outweigh the necessity for prudence. The doctrine relating to
constitutional issues of transcendental importance prevents courts from the
paralysis of procedural niceties when clearly faced with the need for substantial
protection.

xxxx

Under the principle of hierarchy of courts, direct recourse to this Court is improper
because the Supreme Court is a court of last resort and must remain to be so in
order for it to satisfactorily perform its constitutional functions, thereby allowing it
to devote its time and attention to matters within its exclusive jurisdiction and
preventing the overcrowding of its docket. Nonetheless, the invocation of this
Court's original jurisdiction to issue writs of certiorari has been allowed in certain
instances on the ground of special and important reasons clearly stated in the
petition, such as, (1) when dictated by the public welfare and the advancement of
public policy; (2) when demanded by the broader interest of justice; (3) when the
challenged orders were patent nullities; or (4) when analogous exceptional and
compelling circumstances called for and justified the immediate and direct handling
of the case.34

The case before us involves a law that has been approved in 2002 but has
remained unimplemented up to the present. Seventeen years have passed and the
nurses who stand to benefit from the implementation of Section 32 of R.A. No.
9173 continue to be in limbo as to the status of their salary grade classification. It
is in the best interest of all concerned for the Court to put an end to this
controversy by relaxing the rules on hierarchy of courts.

The OSG argues that petitioners' proper remedy could have been an action for
declaratory relief before the appropriate Regional Trial Court under Rule 63 of the
1997 Rules of Civil Procedure. In Spouses Imbong v. Ochoa,35 the Court declared:

The respondents also assail the petitions because they are essentially petitions for
declaratory relief over which the Court has no original jurisdiction. Suffice it to state
that most of the petitions are praying for injunctive reliefs and so the Court would
just consider them as petitions for prohibition under Rule 65, over which it has
original jurisdiction. Where the case has far-reaching implications and prays for
injunctive reliefs, the Court may consider them as petitions for prohibition under
Rule 65.36

The same far-reaching implications are present in this case. Hence, we dispense
with technicalities and give due course to this petition.

Effects of Joint Resolution No. 4

Under the Constitution, only a bill can become a law. Before a bill can become a
law, it must pass three readings on separate days, unless the President certifies
that its enactment is urgent. Section 26, Article VI of the 1987 Constitution
provides:

SEC. 26. (1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.

(2) No bill passed by either House shall become a law unless it has passed
three readings on separate days, and printed copies thereof in its final
form have been distributed to its Members three days before its passage,
except when the President certifies to the necessity of its immediate enactment to
meet a public calamity or emergency. Upon the last reading of a bill, no
amendment thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the Journal. (Emphasis
supplied)

The purpose for which three readings on separate days are required is two-fold: (1)
to inform the members of Congress of what they must vote on, and (2) to give the
members of Congress notice that a measure is progressing through the legislative
process, allowing them and others interested in the measure to prepare their
positions on the matter.37

The Senate Rules of Procedure enumerate the types of legislation as follows:

Types of Legislation

The types of measures that Congress may consider and act upon (in addition to
treaties in the Senate) include bills and three kinds of resolutions. They are:

1. Bills

These are general measures, which if passed upon, may become laws. A bill is
prefixed with S., followed by a number assigned the measure based on the order in
which it is introduced. The vast majority of legislative proposals - recommendations
dealing with the economy, increasing penalties for certain crimes, regulation on
commerce and trade, etc., are drafted in the form of bills. They also include
budgetary appropriation of the government and many others. When passed by both
chambers in identical form and signed by the resident or repassed by Congress over
a presidential veto, they become laws.

2. Joint Resolutions

A joint resolution, like a bill, requires the approval of both houses and the signature
of the President. It has the force and effect of a law if approved. There is no real
difference between a bill and a joint resolution. The latter generally is used when
dealing with a single item or issue, such as a continuing or emergency
appropriations bill. Joint resolutions are also used for proposing amendments to the
Constitution.

3. Concurrent Resolutions

A concurrent resolution is usually designated in the Senate as S. Ct. Res. It is used

for matters affecting the operations of both houses and must be passed in the same
form by both of them. However, they are not referred to the President for his
signature, and they do not have the force of law. Concurrent resolutions are used to
fix the time of adjournment of a Congress and to express the "sense of Congress"
on an issue.

4. Simple Resolutions
It is usually designated with P. S. Res. A simple resolution deals with matters
entirely within the prerogative of one house of Congress, such as adopting or
receiving its own rules. A simple resolution is not considered by the other chamber
and is not sent to the President for his signature. Like a concurrent resolution, it
has no effect and force of a law. Simple resolutions are used occasionally to express
the opinion of a single house on a current issue. Oftentimes, it is also used to call
for a congressional action on an issue affecting national interest. 38

The Senate's definition of a joint resolution states that it is no different from a bill.
However, under Section 26(2), Article VI of the 1987 Constitution, only a bill can be
enacted into law after following certain requirements expressly prescribed in the
Constitution. A joint resolution is not a bill, and its passage does not enact the joint
resolution into a law even if it follows the requirements expressly prescribed in the
Constitution for enacting a bill into a law.

Section 6439 of the Rules of the Senate states that "[p]rior to their final approval,
bills and joint resolutions shall be read at least three times." However, Section
6840 of the same Rules provides that "[n]o bill shall be passed by the Senate unless
it has passed three (3) readings on separate days x x x." 41 There is no express
provision in the Rules of the Senate that applies Section 68 to Joint Resolutions.
The approval process under Section 68 only applies to bills and not to joint
resolutions. In short, there is no express language in the Rules of the Senate
that a joint resolution must pass three readings on separate days. Thus,
the Senate can pass a joint resolution on three readings on the same
day. In contrast, Section 5842 of the Rules of the House of Representatives states
that "[n]o bill or joint resolution shall become law unless it passes three (3)
readings on separate days and printed copies thereof in its final form are
distributed to the Members three (3) days before its passage except when the
President certifies to the necessity of its immediate enactment to meet a public
calamity or emergency."43

In any event, neither the Rules of the Senate nor the Rules of the House of
Representatives can amend the Constitution which recognizes that only a
bill can become a law. However, a joint resolution can be part of the
implementation of a law as provided in the law itself. A joint resolution can also be
treated as a recommendation to the Executive on how the law can be implemented.

The Position Paper for the Senate of the Philippines states that bills and joint
resolutions, for all practical purposes, are treated alike procedurally. According to
the Senate, it is not uncommon to find a proposed piece of legislation, in identical
language, introduced in the Senate as a Senate bill and in the House as a joint
resolution, and vice versa. The Senate added that while at one time or another,
there might have been definite distinctions between the two types of proposed
legislation, they have for all practical purposes been lost.

On the other hand, the House of Representatives asserts that a joint resolution
possesses the force of law if it resembles a bill as to form and procedure for
adoption. The House of Representatives states that the legislative intent to accord
to a joint resolution the same effect as a law should be deemed controlling,
notwithstanding the form and style of enactment. In addition, a joint resolution is
treated in the same way as a bill under the Rules of the House of Representatives.

The Rules of the Senate and the Rules of the House of Representatives can change
since a new Congress is not bound to adopt the rules of the previous Congress. In
fact, the Senate and the House of Representatives of every Congress can amend
their own Rules of Procedure at any time. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,44 the Court sustained the OSG
that "every Senate is distinct from the one before or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senate's membership,
the composition of the Senate also changes by the end of each term. Each Senate
may thus enact a different set of rules as it may deem fit." Thus, in that case,
the Court required the publication of the Rules of Procedure of the Senate
Governing the Inquiries in Aid of Legislation for the 14 th Congress.

The same rule applies to the House of Representatives. The House of every
Congress must adopt its own rules at the start of its term. In particular, the House
is admittedly not a continuing body since the terms of all Members of the House
end at the same time upon the expiration of every Congress. Thus, upon the
expiration of every Congress, the Rules of Procedure of the House also expire. That
is why Section 1, Rule 1 of the Rules of the House of Representatives of the 17th
Congress, adopted on 25 July 2016, provides: "After the oath-taking of the
newly-elected Speaker, the body shall proceed to the adoption of the rules
of the immediately preceding Congress to govern its proceedings until the
approval and adoption of the rules of the current Congress."

Again, the Constitution provides that only a bill can become a law. When a bill is
proposed, either in the Senate or in the House of Representatives, the public is
immediately informed that there is a proposal being considered which, if it becomes
a law, can bind them. It is imperative for the public to know when a bill is being
considered so that they can send their comments, proposals, or objections to the
bill. This is in consonance with the requirement on transparency in public
transactions under Section 28, Article II of the 1987 Constitution which provides
that "[s]ubject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest." If a joint resolution is proposed instead of a bill, the public will not be
alerted that there is a proposed legislation, and a law can pass stealthily without
notice to the public.

Sections 24 and 25, Article VI of the 1987 Constitution, on legislative

appropriations, likewise refer only to bills. These Sections state:

SEC. 24. All appropriation, revenue or tariff bills, bills authorizing increase of the

public debt, bills of local application, and private bills shall originate exclusively in
the House of Representatives, but the Senate may propose or concur with
amendments.
SEC. 25. (1) The Congress may not increase the appropriations recommended by
the President for the operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget shall be prescribed by law.

(2) No provision or enactment shall be embraced in the general appropriations

bill unless it relates specifically to some particular appropriation therein. Any such
provision or enactment shall be limited in its operation to the appropriation to which
it relates.

(3) The procedure in approving appropriations for the Congress shall strictly follow
the procedure for approving appropriations for other departments and agencies.

(4) A special appropriations bill shall specify the purpose for which it is intended,

and shall be supported by funds actually available as certified by the National
Treasurer, or to be raised by a corresponding revenue proposal therein.

(5) No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in the
General Appropriations Law for their respective offices, from savings in other items
of their respective appropriations.

(6) Discretionary funds appropriated for particular officials shall be disbursed only
for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law.

(7) If, by the end of any Fiscal Year, the Congress shall have failed to pass
the General Appropriations Bill for the ensuing Fiscal Year, the General
Appropriations Law for the preceding Fiscal Year shall be deemed re-enacted and
shall remain in force and effect until the General Appropriations Bill is passed by
the Congress. (Emphasis supplied)

In addition, Section 27(1), Article VI of the 1987 Constitution speaks of the veto
power of the President over every bill which must be presented to him for approval.
It provides:

SECTION 27. (1) Every bill passed by the Congress shall, before it becomes a
law, be presented to the President. If he approves the same, he shall sign
it; otherwise, he shall veto it and return the same with his objections to
the House where it originated, which shall enter the objections at large in
its Journal and proceed to reconsider it. If, after such reconsideration, two-
thirds of all the Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes of each House shall be determined
by yeas or nays, and the names of the Members voting for or against shall be
entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof;
otherwise, it shall become a law as if he had signed it. (Emphasis supplied)

The veto power of the President applies expressly only to bills, not to joint
resolutions. If a joint resolution is given the effect of, and treated as, a law,
Congress will be taking away the veto power of the President since the Constitution
only provides for the President's veto power over a bill. In short, Congress can
enact a joint resolution into a law that is not subject to the President's veto power,
a situation that clearly violates the Constitution.

The United States House of Representatives defines joint resolutions as follows:

Joint Resolutions

Joint resolutions may originate either in the House of Representatives or in the

Senate. There is little practical difference between a bill and a joint resolution. Both
are subject to the same procedure, except for a joint resolution proposing an
amendment to the Constitution. On approval of such a resolution by two-thirds of
both the House and Senate, it is sent directly to the Administrator of General
Services for submission to the individual states for ratification. It is not presented to
the President for approval. A joint resolution originating in the House of
Representatives is designated "H.J. Res." followed by its individual number. Joint
resolutions become law in the same manner as bills.45

On the other hand, the United States Senate describes joint resolutions as follows:

Joint Resolutions

Joint Resolutions are designated H.J. Res or S.J. Res. and are followed by a
number. Like a bill, a joint resolution requires the approval of both Chambers in
identical form and the president's signature to become law. There is no real
difference between a joint resolution and a bill. The joint resolution is generally
used for continuing or emergency appropriations. Joint resolutions are also used for
proposing amendments to the Constitution; such resolutions must be approved by
two-thirds of both Chambers and three-fourths of the states, but do not require the
president's signature to become part of the Constitution. 46

Indeed, under both the U.S. Senate and U.S. House of Representatives, there is no
difference between a bill and a joint resolution. This practice, however, cannot be
applied in this jurisdiction.

Article 1, Section 7 of the United States Constitution provides:

Section 7. All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with Amendments as on
other Bills.
Every Bill which shall have passed the House of Representatives and the Senate,
shall, before it become a Law, be presented to the President of the United States; If
he approve he shall sign it, but if not he shall return it, with his Objections to that
House in which it shall have originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it. If after such Reconsideration two thirds
of that House shall agree to pass the Bill, it shall be sent, together with the
Objections, to the other House, by which it shall likewise be reconsidered, and if
approved by two thirds of that House, it shall become a Law. But in all such Cases
the Votes of both Houses shall be determined by Yeas and Nays, and the Names of
the Persons voting for and against the Bill shall be entered on the Journal of each
House respectively. If any Bill shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to him, the Same shall
be a Law, in like Manner as if he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which Concurrence of the Senate and

House of Representatives may be necessary (except on a question of
Adjournment) shall be presented to the President of the United States; and
before the Same shall take Effect, shall be approved by him, or being
disapproved by him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and Limitations
prescribed in the Case of a Bill.47 (Emphasis supplied)

There is no counterpart provision in our 1935, 1973 and 1987 Constitutions insofar
as "Order, Resolution or Vote" is concerned. All our Constitutions, including our
present 1987 Constitution, have only provided that a "bill" can be enacted into law
but have never provided that an "Order, Resolution or Vote" can also be enacted
into law.

Justice Alfredo Benjamin S. Caguioa asserts, that the Philippine Congress' concept
of joint resolution is equivalent to the United States Senate's characterization of
joint resolution as a piece of legislation that requires the approval of both chambers
and is submitted to the President for possible signature as a law. Justice Caguioa
declares:

Additionally, the Philippine Congress' concept of joint resolution is equivalent to

the United States Senate's characterization of joint resolutions, i.e., a piece
of legislation that requires the approval of both chambers and is submitted (just as
a bill) to the president for possible signature into law.48 (Emphasis supplied)

Such interpretation by the United States Senate is in accordance with the U.S.
Constitution where an "Order, Resolution or Vote" may be enacted into law. We
cannot adopt in our jurisdiction the U.S. Senate's characterization of joint
resolutions even if we follow the same procedure in enacting a bill into law.

First, what we are applying here is the Philippine Constitution, not the U.S.
Constitution. There s no language, express or implied, in all our Constitutions,
including our present 1987 Constitution, providing that a joint resolution can be
enacted into:law if the same procedure for enacting a bill into law is followed. The
language of the 1987 Constitution is plain, simple and clear: a bill can be enacted
into law, and the same Constitution does not mention any other act or measure
that can be enacted into law. There is no need for interpretation here but only
application of the Verba Legis rule.

Second, granting that the 1935, 1973 and 1987 Philippine Constitutions have
borrowed from the U.S. Constitution the basic system of government with three co-
equal branches, our Constitutions have never adopted wholesale or verbatim the
U.S. Constitution. Our Constitutions have adopted major parts, but not all parts, of
the U.S. Constitution. The U.S. Constitution expressly recognizes that a "Bill,"
"Order, Resolution or Vote" can be enacted into law. What our Constitutions have
adopted is that a bill can be enacted into law. Our Constitutions have never
included the phrase "Order, Resolution or Vote" that appears in the U.S.
Constitution. Applying the principle of expressio unius est exclusio alterius, the
correct interpretation, if interpretation is required, is that our Constitutions
recognize that only a bill can be enacted into law. The Court has explained this
principle:

It is a settled rule of statutory construction that the express mention of one person,
thing, or consequence implies the exclusion of all others. The rule is expressed in
the familiar maxim, expressio unius est exclusio alterius.

The rule of expressio unius est exclusio alterius is formulated in a number of ways.
One variation of the rule is the principle that what is expressed puts an end to that
which is implied. Expressum facit cessare tacitum. Thus, where a statute, by its
terms, is expressly limited to certain matters, it may not, by interpretation
or construction, be extended to other matters.

xxxx

The rule of expressio unius est exclusio alterius and its variations are canons of
restrictive interpretation. They are based on the rules of logic and the natural
workings of the human mind. They are predicated upon one's own voluntary act
and not upon that of others. They proceed from the premise that the legislature
would not have made specified enumeration in a statute had the intention been not
to restrict its meaning and confine its terms to those expressly
mentioned.49 (Emphasis supplied)

This principle particularly applies because a contrary interpretation will result in an

absurdity.

Third, inserting by interpretation to our 1987 Constitution the phrase "Order,

Resolution or Vote" in the U.S. Constitution will result in an absurdity. If a joint
resolution can be enacted into law under the 1987 Constitution by simply following
the procedure for enacting a bill into law, then an "Order x x x or Vote" can also be
enacted into law by following the same procedure. An "Order x x x or Vote" being
enacted into law by our Congress is as strange as it is absurd.
Fourth, applying in this jurisdiction by interpretation express provisions in the U.S.
Constitution, that do not appear in our Constitutions, including our present 1987
Constitution, sets an extremely dangerous precedent. Where the U.S. Constitution
expressly specifies four grounds, and our Constitutions, including our present 1987
Constitution, only specify one of the four grounds, it would not only be absurd but
also dangerous to interpret that the three other grounds are also incorporated into
our Constitutions.

Justice Caguioa asserts that the Constitution does not preclude the passage into law
of joint resolutions. Citing the history of the constitutional provision on the passage
of laws, Justice Caguioa contends that the original proposed draft recommended by
the 1934-1935 Constitutional Convention Committee on Legislative Poter states
that joint resolutions shall become law after undergoing the legislative process.
According to Justice Caguioa, the term "joint resolutions" was removed when the
Constitutional Convention decided to adopt a unicameral legislative system and the
subcommittee modified the prop6sed ·provisions by deleting joint resolutions
because there are no joint resolutions under a unicameral legislature. For Justice
Caguioa, the deletion of the term "joint resolutions" in the 1935 Constitution, which
deletion was later carried over to the 1935 and 1987 Constitutions, was deemed a
"clerical error." No one, however, has pointed out this "clerical error" until now,
after 84 long years from the adoption of the 1935 Constitution. The fact that the
term "joint resolutions" was in the draft but was not included in the final version
approved by the Constitutional Convention only means that the deletion of the term
"joint resolutions" was deliberate and not a mere "clerical error." Incidentally, the
terms "joint resolution" and "resolution" do not appear at all in any provision of the
1935 Constitution.

Assuming for the sake of argument that the framers of the 1935 Constitution
committed this "clerical error," this "clerical error" should have been corrected
by the framers of the 1973 and 1987 Constitutions. They did not because, very
obviously, there was no "clerical error" at all. To repeat, no one ever complained
about, or pointed out, this alleged "clerical error" except Justice Caguioa, and only
now after more than eight (8) decades since the alleged "clerical error" was
committed. No constitutional law textbook writer, no decision of this Court, and no
law journal article ever raised this alleged "clerical error." If in an enumeration of
words in a draft, a word is removed from the final approved version, the logical
conclusion is that the removal of the word was intentional. If indeed there was a
"clerical error," this error appeared not only in one provision of the 1935
Constitution, but in all provisions of the 1935 Constitution where the word "bill"
appeared seventeen (17) times in relation to proposed legislations. This would
constitute a compendium of "clerical errors" in the fundamental law of the land
which should have been the major focus of many law journal articles; yet, not a
single article about such alleged "clerical errors" has ever been written.

Section 19(a) of the Jones Law of 1916, on the Procedure for Law-Making,
provides:
(a) Legislative journal and the veto power. - That each house of the Legislature
shall keep a journal of its proceedings and, from time to time, publish the same;
and the yeas and nays of the members of either house, on any question, shall,
upon demand of one-fifth of those present, be entered on the journal, and every bill
and joint resolution which shall have passed both houses shall, before it becomes a
law, be presented to the Governor-General. If he approve[s] the same, he shall
sign it; but if not, he shall return it with his objections to that house in which it shall
have originated, which shall enter the objections at large on its journal and proceed
to reconsider it. If, after such reconsideration, two-thirds of the members elected to
that house shall agree to pass the same, it shall be sent, together with the
objections, to the other house, by which it shall likewise be reconsidered, and if
approved by two-thirds of all the members elected to that house it shall be sent to
the Governor-General, who, in case he shall then not approve, shall transmit the
same to the President of the United States. The votes of each house shall be by the
yeas and nays, and the names of the members voting for and against shall be
entered [on] the journal. If the President of the United States approve[s] the same,
he shall sign it and it shall become a law. If he shall not approve the same, he shall
return it to the Governor-General, so stating, and it shall not become a
law: Provided, That if any bill or joint resolution shall not be returned by the
Governor-General as herein provided within twenty days (Sundays excepted) after
it shall have been presented to him the same shall become a law in like manner as
if he had signed it, unless the Legislature by adjournment prevents its return, in
which case it shall become a law unless vetoed by the Governor-General within
thirty days after adjournment: Provided, further, That the President of the United
States shall approve or disapprove an act submitted to him under the provisions of
this section within six months from and after its enactment and submission for its
approval; and if not approved within such time, it shall become a law as if it had
been specifically approved.

While a part of the 1935 Constitution was patterned after the Jones Law, the final
version of the 1935 constitution did not adopt the term "joint
resolutions." While the Jones Law of 1916 required that "every bill and joint
resolution which shall have passed both houses shall, before it becomes a law, be
presented to the Governor-General[,]" the term "joint resolutions" was not
adopted in the 1935 Constitution and in the succeeding 1973 and 1987
Constitutions. Section 19(a) of the Jones Law of 1916 also referred to the power
of the Governor-General to return the bill or joint resolution, with his objections, to
the house in which it should have originated, which is similar, though to a limited
extent, to the veto power of the President. However, the veto power of the
President under the 1935, 1973 and 1987 Constitutions expressly refers only to
bills and not to joint resolutions. The Court cannot expand the Constitution by
inserting a term that is not expressly found in the Constitution.

In its First Progress Report dated 10 December 1968, Committee IV of the

Constitutional Revision Project,50 submitted its Draft of a Bicameral Legislative
Department of a Presidential Type of Government. 51 Section 18 of the Draft states:
SEC. [20] 18. (1) EVERY BILL PASSED BY [THE] CONGRESS SHALL, BEFORE IT
BECOMES A LAW, BE PRESENTED TO THE PRESIDENT. IF HE APPROVES THE
[SAME] BILL, HE SHALL SIGN IT; BUT IF NOT, HE SHALL RETURN IT WITH HIS
OBJECTIONS TO THE HOUSE WHERE IT ORIGINATED, WHICH SHALL ENTER THE
OBJECTIONS AT LARGE ON ITS JOURNAL AND PROCEED TO RECONSIDER IT. IF,
AFTER [SUCH], THE RECONSIDERATION, [TWO-THIRDS] A MAJORITY OF ALL THE
MEMBERS OF [SUCH] THE HOUSE SHALL AGREE TO PASS THE BILL, IT SHALL BE
SENT, TOGETHER WITH THE OBJECTIONS, TO THE OTHER HOUSE BY WHICH IT
SHALL LIKEWISE BE RECONSIDERED, AND IF APPROVED BY [TWO-THIRDS] A
MAJORITY OF ALL THE MEMBERS OF THAT HOUSE, IT SHALL BECOME A LAW. IN
ALL [SUCH] THOSE CASES, THE VOTES OF EACH HOUSE SHALL BE DETERMINED
BY YEAS AND NAYS, AND THE NAMES OF THE MEMBERS VOTING FOR AND
AGAINST SHALL BE ENTERED [ON] IN ITS JOURNAL. IF ANY BILL SHALL NOT BE
RETURNED BY THE PRESIDENT AS HEREIN PROVIDED WITHIN TWENTY DAYS
(SUNDAYS AND HOLIDAYS EXCEPTED) AFTER IT SHALL HAVE BEEN PRESENTED TO
HIM, THE [SAME] BILL SHALL BECOME A LAW IN LIKE MANNER AS IF HE HAD
SIGNED IT, UNLESS [THE] CONGRESS BY ADJOURNMENT PREVENTS ITS RETURN,
IN WHICH CASE IT SHALL BECOME A LAW UNLESS VETOED BY THE PRESIDENT
WITHIN THIRTY DAYS AFTER [ADJOURNMENT] IT SHALL HAVE BEEN PRESENTED
TO HIM.

Clearly, this 1968 draft of the proposed revision to the 1935 Constitution mentions
that only a bill can be enacted into law. No one can claim that the absence of the
term "joint resolutions" in this 1968 draft is a "clerical error."

The term "joint resolutions" was not also included in the 1987 Constitution. The
Court cannot dismiss the absence of such term as a mere "clerical error" because
of its serious implication. The Court cannot simply insert a term in the Constitution
that does not appear in the approved and ratified Constitution, on the ground that
the framers of the Constitution committed a "clerical error," when the insertion of
the term radically changes the substantive application and meaning of the
Constitution. The Court has already ruled that deletions in preliminary drafts
of the Constitutional Convention are, at best, negative guides, which
cannot prevail over the positive provisions of the finally adopted
Constitution.52

Justice Caguioa opines that the difference between a bill and a joint resolution is
just a matter of nomenclature. According to Justice Caguioa, joint resolutions also
go through the same process as bills. Joint resolutions go through the same process
as bills only because Congress provides for the process under the Rules of
Procedure of both the Senate and the House of Representatives. However, a new
Congress is not bound to adopt the rules of procedure of the previous Congress.
Moreover, the Senate or the House can at any time amend their rules of procedure
to provide for a different procedure to pass joint resolutions.

A bill is, of course, vastly different from a joint resolution. First, a bill to be

approved by Congress must pass three (3) readings on separate days. There can
be no deviation from this requirement, unless the President certifies the
bill as urgent. In contrast, Congress can approve a joint resolution in one, two or
three readings, on the same day or on separate days, depending on the rules of
procedure that the Senate or the House may, at their sole discretion, adopt.

Second, the Constitution requires that before a bill is approved, printed copies of
the bill in its final form must be distributed to Members of the Senate and House
three days before its passage. There can be no deviation from this
requirement, unless the President certifies the bill as urgent. In contrast, a
joint resolution can be approved on the same day, or several days after, the final
printed copies are distributed to Members of the Senate and the House, depending
on the rules of procedure that the Senate or the House may, at their sole
discretion, adopt.

Third, a bill approved by Congress must be presented to the President for his
signature or veto. There can be no deviation from this. In contrast, a joint
resolution approved by Congress does not require the President's signature or veto,
unless the Senate, or the House, in their respective rules of procedure, at their sole
discretion, requires such presentation to the President.

Fourth, upon the last reading of a bill, no amendment is allowed, and voting on the
bill shall immediately be taken. There can be no deviation from this
requirement. In contrast, there is no such requirement in approving a joint
resolution, unless the Senate and the House, at their sole discretion, adopt such
requirement.

Fifth, the procedure in enacting a bill into law is permanently fixed as

prescribed by the Constitution and cannot be amended by any act of
Congress. In contrast, the procedure for passing a joint resolution is adopted
separately by the Senate and the House, and can be changed at any time by the
Senate or the House, respectively.

Under the theory of Justice Caguioa, whether a joint resolution can become a law or
not depends on the procedure prescribed by the Senate or the House, which
procedure may vary from one Congress to another, or may even change during the
same Congress. Under this theory, if both the House and the Senate adopt the
same procedure as provided in the Constitution for enactment of a bill into law,
then a joint resolution can become a law. However, if either the Senate or the
House does not adopt the same procedure as provided in the Constitution, then a
joint resolution cannot become a law. In short, it is the sole discretion of either
the Senate or the House whether a joint resolution can become a law or
not. This is not how the Constitution prescribes the enactment of a law.

The Constitution unequivocally and mandatorily prescribes how a law is enacted, by

expressly providing: "No bill passed by either House shall become a law unless it
has passed three readings on separate days, and printed copies thereof in its final
form have been distributed to its Members three days before its passage x x x."
Congress has no power to amend this constitutional provision to transform, at the
discretion of Congress, a joint resolution into a law by merely following the
procedure prescribed by the Constitution for the enactment of a bill into a law. The
procedure for the enactment of a law cannot be made to depend on the
vagaries of every Congress.

According to Justice Caguioa, the Rules of the Senate allow the proposal of an
appropriation, revenue or tax measure through a joint resolution even when the
Constitution provides that public funds shall be paid out of the Treasury pursuant
only to an appropriation made by law thus, making it clear that joint resolutions are
treated by Congress as laws. This is clearly erroneous. First, Section 24, Article VI
of the 1987 Constitution refers only to "appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and
private bills." Section 24 cannot be expanded by the Senate or the House,
by inserting through their rules of procedure, the term "joint resolutions"
in Section 24.

Second, any practice, even if regularly done by Congress, is void if it violates the
Constitution. An act of Congress or the Executive, even if repeated over time,
cannot operate to amend or repeal any provision of the Constitution. Any rule of
Congress requiring three readings for a joint resolution does not add any
constitutional legitimacy so that a joint resolution can become a law. A joint
resolution does not become a law by undergoing three readings because there is no
specific provision in the 1987 Constitution providing that a joint resolution can
become a law.

Justice Caguioa also calls our attention that the Court presumably recognized that
Joint Resolutions 1 and, 4 were considered laws because they were referred by the
Court as Salary Standardization Laws II and III, respectively. The issue in National
Electrification Administration v. Commission on Audit 53 is the NEA's acceleration of
schedule of payment of Executive Order No. 389 and NBC No. 458. On the other
hand, Development Bank of the Philippines v. Commission on Audit 54 is a case
questioning COA's notice of disallowance of the Governance Forum Productivity
Award. There was no issue as to any amendment effected by Joint Resolutions 1
and 4. The Court did not make any categorical pronouncement in those cases that it
considers the Joint Resolutions as laws.

Justice Caguioa cites Part XLVI of R.A. No. 9524 (The General Appropriations Act of
2009), particularly Section 1(b) of the Special Provision on the Miscellaneous
Personnel Benefits Fund (MPBF) which authorizes payment of "[s]alary adjustment
and associated benefits and such other benefits as may be authorized by law or by
the President of the Philippines." Precisely, the effectivity of Joint Resolution No. 4
is only as an implementing rule of R.A. No. 6758, and for as long as Congress funds
the adjustments as it did in subsequent General Appropriation Acts, which are
themselves laws, the salary increases can be implemented by a joint
resolution. For purposes, however, of repealing an existing law, there must
be a repealing provision, or an irreconcilably inconsistent provision, in a
subsequent valid law, not merely a joint resolution.
The Court's attention is called to the United States case of Immigration and
Naturalization Service v. Chadha55 where U.S. Chief Justice Warren Burger,
the ponente of the case, discussed the third paragraph of the U.S. Constitution
which enumerates "Order, Resolution, or Vote" and the process of presentment and
approval or disapproval by the President of the United States.

Immigration and Naturalization Service v. Chadha is an alien deportation case. The

issue in this case is not the passing of a bill but the constitutionality of the act of
the House of Representatives which vetoed, without the concurrence of the Senate,
the Attorney General's suspension of Chadha's deportation. The case discussed the
requirement of presentment of all legislation to the President before becoming a
law. This case explained that the terms "resolution" and "vote" were added to avoid
"the simple expedient of calling a proposed law a 'resolution' or 'vote' rather than a
'bill.'" Again, we do not have the same provision in our Constitution. We cannot just
adopt the terms used in the U.S. Constitution as part of our own Constitution
without any express provision adopted and ratified by the people. We cannot
likewise adopt the intent of the framers of the U.S. Constitution without any act of
the framers of our Constitution, ratified by the people, to incorporate the provisions
of the U.S. Constitution in our Constitution.

Justice Caguioa also points out that the issue of the constitutionality of Joint
Resolution No. 4 was not raised by petitioners in the present case. To recall,
petitioners did raise specifically the issue of "whether x x x Joint Resolution No.
4 (Series of 2009) of the Senate and the House of Representative[s]
amended Section 32 of the Philippine Nursing Act of 2002."56 This alone puts
in issue the legal status of Joint Resolution No. 4 - whether it has the status of law
that can amend or repeal Section 32 of R.A. No. 9173, a prior law. Moreover, the
Advisory for the Oral Arguments of the present case enumerated the issues to be
considered by the Court, thus:

A. Whether Joint Resolution No. 4 has repealed Section 32 of Republic Act

No. 9173:

1. Whether a joint resolution that followed the procedure of a bill

passing into law is a law;
2. Whether Joint Resolution No. 4 followed the procedure of a bill
passing into a law[.]

B. If Joint Resolution No. 4 has not repealed Section 32 of Republic Act

No. 9173, whether the Supreme Court can compel the respondents to
pay the nurses their compensation under Salary Grade 15 as
prescribed in Section 32 of Republic Act No. 9173[.]57

In addition, the Court directed the Office of the Solicitor General to confer with the
Senate of the Philippines and the House of Representatives for the submission of
their position papers on whether a joint resolution can amend or repeal an existing
law, and on how the passage of a bill into law compares with the passage of joint
resolution. Thus, the constitutionality of Joint Resolution No. 4, which
purports to repeal Section 32 of R.A. No. 9173, was clearly put in issue in
this case.

The Court cannot resolve the other issues raised in this petition without resolving
the primordial issue of the constitutionality of Joint Resolution No. 4. The issues of
the constitutionality of Joint Resolution No. 4 and whether it can be considered a
law are necessarily intertwined with the issue of whether it amended or repealed
Section 32 of R.A. No. 9173. Hence, it is necessary for the Court to consider the
validity and effect of Joint Resolution No. 4 for a complete determination of the
issues raised by petitioners.

Republic Act No. 6758 (R.4. No. 6758) 58 provides for the periodic review of the
compensation rates for government employees. Section 3 of R.A. No. 6758 states:

Section 3. General Provisions. - The following principles shall govern the

Compensation and Position Classification System of the Government:

(a) All government personnel shall be paid just and equitable wages; and while pay
distinctions must necessarily exist in keeping with work distinctions, the ratio of
compensation for those occupying higher ranks to those at lower ranks should be
maintained at equitable levels, giving due consideration to higher percentage of
increases to lower level positions and lower percentage increases to higher level
positions;

(b) Basic compensation for all personnel in the government and government-owned
or controlled corporations and financial institutions shall generally be comparable
with those in the private sector doing comparable work, and must be in accordance
with prevailing laws on minimum wages;

(c) The total compensation provided for government personnel must be maintained
at a reasonable level in proportion to the national budget;

(d) A review of government compensation rates, taking into account

possible erosion in purchasing power due to inflation and other factors,
shall be conducted periodically. (Emphasis supplied)

After a review of compensation rates, any change in compensation rates should be

done by enacting a new law. Any such change amends an existing law, and such
amendment cannot be done by a mere joint resolution because a joint resolution
cannot amend a law.

On 26 July 1993, Congress passed Joint Resolution No. 1. The Whereas clause of
Joint Resolution No. 1 recognized that "the President has the authority to revise the
existing compensation and position classification system under the standards and
guidelines hereunder provided[.]" As such, it urged the President to revise R.A. No.
6758 to be more responsive to the economic needs of government personnel. Joint
Resolution No. 1 further recognized that "it is necessary x x x to update the present
compensation and position classification system to make it more responsive to the
economic needs of government personnel, to provide adequate incentive to public
servants and, ultimately, to improve the quality of public service[.]"

Joint Resolution No. 1 was proposed by the Executive-Legislative Committee

composed of the Office of the President, the Senate, and the House of
Representatives. The Executive-Legislative Committee was specifically formed to
expedite legislative and executive action on salary adjustment. Joint Resolution No.
1 declared that funds amounting to P11.0 billion, representing compensation:
adjustments for 1994 had already been appropriated under Republic Act No. 7663,
the 1994 General Appropriations Act (1994 GAA). In short, when ,Joint
Resolution No. 1 was passed by Congress, the compensation adjustments
contemplated therein were already fully funded by law under the 1994
GAA. Thus, there was an existing law authorizing the payment of the
compensation adjustments for fiscal year 1994, and such payment could be
triggered by a joint resolution.

On the other hand, Congress passed Joint Resolution No. 4 59 on 28 July 2008. In its
Whereas clauses, Joint Resolution No. 4 stated that "the present Compensation and
Position Classification System has to be revised further to update the same, to
further encourage excellent performance and productivity, and to clearly distinguish
differences in levels of responsibility and accountability among government officials
and employees;" and that "the current structure of the Salary Schedule causes the
overlapping of salaries between salary grades, thereby resulting to salary
inequalities between positions[.]"

Joint Resolution No. 4, which seeks to change or revise the Compensation and
Position Classification System established by existing law, cannot take effect
without an amendatory law. The revisions prescribed in Joint Resolution No. 4 are
not authorized by any existing law. Thus, an amendatory law is needed to
implement the provisions of Joint Resolution No. 4 that seek to amend existing law.

In his Concurring and Dissenting Opinion in Cawad v. Abad,60 Justice Marvic M.V.F.

Leonen expressed the opinion that "[t]he validity of Joint Resolution No. 4 was
suspect be.cause it revised several laws and was passed by Congress in a
manner not provided by the Constitution."61 Justice Leonen added:

Joint resolutions are not sufficient to notify the public that a statute is being passed
or amended. As in this case, the amendment to a significant empowering provision
in Republic Act No. 7305 was done through a joint resolution. The general public
will be misled when it attempts to understand the state of the law since it will also
have to comb through joint resolutions in order to ensure that published Republic
Acts have not been amended.62

Under R.A. No. 6758, there are positions with specific salary grades. Section 8 of
R.A. No. 6758 provides:
Section 8. Salaries of Constitutional Officials and Their Equivalent. - Pursuant to
Section 17, Article XVIII of the Constitution, the salary of the following officials shall
be in accordance with the Salary Grades indicated hereunder:
Salary Grades    

     

President of the Philippines 33  

Vice-President of the Philippines 32  

President of the Senate 32  

Speaker of the House of Representatives 32  

Chief Justice of the Supreme Court 32  

Senator 31  

Member of the House of Representatives 31  

Associate Justices of the Supreme Court 31  

Chairman of a Constitutional Commission 31  

under Article IX, 1987 Constitution  

Member of a Constitutional Commission 30  

Under Article IX, 1987 Constitution    

The Department of Budget and Management is hereby authorized to determine the

officials who are of equivalent rank to the foregoing Officials, where applicable, and
may be assigned the same Salary Grades based on the following guidelines:

GRADE 33 - This Grade is assigned to the President of the Republic of the

Philippines as the highest position in the government. No other position in the
government service is considered to be of equivalent rank.

GRADE 32 - This Grade is limited to the Vice-President of the Republic of the

Philippines and those positions which head the Legislative and Judicial Branches of
the government, namely: the Senate President, Speaker of the House of
Representatives and Chief Justice of the Supreme Court. No other positions in the
government service are considered to be of equivalent rank.

GRADE 31 - This Grade is assigned to Senators and Members of the House of

Representatives and those with equivalent rank as follows: the Executive Secretary,
Department Secretary, Presidential Spokesman, Ombudsman, Press Secretary,
Presidential Assistant with Cabinet Rank, Presidential Adviser, National Economic
and Development Authority Director General, Court of Appeals Presiding Justice,
Sandiganbayan Presiding Justice, Secretary of the Senate, Secretary of the House
of Representatives, and President of the University of the Philippines.

An entity with a broad functional scope of operations and wide area of coverage
ranging from top level policy formulation to the provision of technical and
administrative support to the units under it, with functions comparable to the
aforesaid positions in the preceding paragraph, can be considered organizationally
equivalent to a Department, and its head to that of a Department Secretary.

GRADE 30 - Positions included are those of Department Undersecretary, Cabinet

Undersecretary, Presidential Assistant, Solicitor General, Government Corporate
Counsel, Court Administrator of the Supreme Court, Chief of Staff of the Office of
the Vice-President, National Economic and Development Authority Deputy Director
General, Presidential Management Staff Executive Director, Deputy Ombudsman,
Associate Justices of the Court of Appeals, Associate Justices of the Sandiganbayan,
Special Prosecutor, University of the Philippines Executive Vice-President, Mindanao
State University President, Polytechnic University of the Philippines President [] and
President of other state universities and colleges of the same class.

Heads of councils, commissions, boards and similar entities whose operations cut
across offices or departments or are serving a sizeable portion of the general public
and whose coverage is nationwide or whose functions are comparable to the
aforecited positions in the preceding paragraph, may be placed at this level.

The equivalent rank of positions not mentioned herein or those that may be created
hereafter shall be determined based on these guidelines.

The Provisions of this Act as far as they upgrade the compensation of Constitutional
Officials and their equivalent under this section shall, however, take effect only in
accordance with the Constitution: Provided, That with respect to the President and
Vice-President of the Republic of the Philippines, the President of the Senate, the
Speaker of the House of Representatives, the Senators, and the Members of the
House of Representatives, no increase in salary shall take effect even beyond 1992,
until this Act is amended: Provided, further, That the implementation of this Act
with respect to Assistant Secretaries and Undersecretaries shall be deferred for one
(1) year from the effectivity of this Act and for Secretaries, until July 1, 1992:
Provided, finally, That in the case of Assistant Secretaries, Undersecretaries and
Secretaries, the salary rates authorized herein shall be used in the computation of
the retirement benefits for those who retire under the existing retirement laws
within the aforesaid period.

Section 9 of R.A. No. 6758, on the other hand, only provides for a benchmark
position schedule for other positions. It states:

Section 9. Salary Grade Assignments for Other Positions. - For positions below the
Officials mentioned under Section 8 hereof and their equivalent, whether in the
National Government, local government units, government-owned or controlled
corporations or financial institutions, the Department of Budget and Management is
hereby directed to prepare the Index of Occupational Services to be guided by the
Benchmark Position Schedule prescribed hereunder and the following factors: (1)
the education and experience required to perform the duties and responsibilities of
the positions; (2) the nature and complexity of the work to be performed; (3) the
kind of supervision received; (4) mental and/or physical strain required in the
completion of the work; (5) nature and extent of internal and external
relationships; (6) kind of supervision exercised; (7) decision-making responsibility;
(8) responsibility for accuracy of records and reports; (9) accountability for funds,
properties and equipment; and (10) hardship, hazard and personal risk involved in
the job.

Benchmark Position Schedule

Position Title Salary Grade  

     

Laborer I 1  

Messenger 2  

Clerk I 3  

Driver I 3  

Stenographer I 4  

Mechanic I 4  

Carpenter II 5  

Electrician II 6  

Secretary I 7  

Bookkeeper 8  

Administrative Assistant 8  

Education Research Assistant I 9  

Cashier I 10  

Nurse I 10  

Teacher I 10  

Agrarian Reform Program Technologist 10  

Budget Officer I 11  

Chemist I 11  
 Agriculturist I 11  

Social Welfare Officer I 11  

Engineer I 12  

Veterinarian I 13  

Legal Officer I 14  

Administrative Officer II 15  

Dentist II 16  

Postmaster IV 17  

Forester III 18  

Associate Professor I 19  

Rural Health Physician 20  

xxxx

In short, for other positions in the government, that is, for positions other than
Constitutional officials and their equivalent, R.A. No. 6758 only created a
benchmark to guide the DBM in its preparation of the Index of Occupational
Services. The Benchmark Position Schedule may only be amended by law. A joint
resolution cannot amend the Benchmark Position Schedule which is fixed by law. A
joint resolution has only the effect of a recommendation to the government agency
authorized to implement a law, in this case R.A. No. 6758. Section 9 of R.A. No.
6758 gives the DBM the authority to prepare the Index of Occupational Services for
other positions in the government.

The Court is aware that Joint Resolution No. 1 changed the salary grades of
Constitutional officials and their equivalent under Section 8 of R.A. No. 6758, which
Joint Resolution 1 could not amend. However, this was already corrected when Joint
Resolution No. 4 reverted to the salary grades prescribed under Section 8 of R.A.
No. 6758. There is no inconsistency between Section 8 of R.A. No. 6758 and Joint
Resolution No. 4 insofar as the salary grades of Constitutional officials and their
equivalent are concerned.

As regards the salary grade of nurses, the change in the salary grade was done
through a law, R.A. No. 9173. The authority given to the DBM with respect to the
salary grade of nurses was superseded by R.A. No. 9173, which provided for the
new salary, grade of nurses, starting at salary grade 15 as the minimum. R.A. No.
9173 cannot be amended by a mere joint resolution.

In their respective deliberations on Joint Resolution No. 4, both the Senate and the
House of Representatives considered the implications of the proposed position
classification fr nurses under Section 32 of R.A. No. 9173. During the 12 May 2009
deliberations, Rep. Rufus B. Rodriguez raised the position classification of nurses
under Section 32 of R.A. No. 9173, thus:

REP. RODRIGUEZ. x x x.

xxxx

So, may I proceed now to the next set of officials that I would like to ask on, Mr.
Speaker, and these will be the nurses and those in the public health system.

I would like to ask, Mr. Speaker, the distinguished Sponsor: under the Magna Carta
for Public Health Workers, the nurses, under the law, are supposed to already have
a salary grade of 15. May I know what salary grade the nurses will have under this
position classification plan?

REP. CUA. Under the proposal, Mr. Speaker, the nurses will be receiving a salary
grade of 11...

REP. RODRIGUEZ. 11.

REP. CUA. ...similar to that of teachers. And we feel that is the level that can be
sustained at the moment, Mr. Speaker.

REP. RODRIGUEZ. Mr. Speaker, my question is: would this Joint Resolution No.
9092, under Committee Report No. 9092, prevail over the expressed provision of
law that mandates that nurses should have a salary level of 15.

REP. CUA. Mr. Speaker, a joint resolution is a resolution that is supposed to be

passed by both Houses and signed by the President. And from my understanding,
this joint resolution, if it passes the scrutiny of both Houses and signed by the
President, would have the force and effect of a law. And I think there is
jurisprudence to that effect. And so, that being the case, if having the force and
effect of a law, it would amend that Act.

REP. RODRIGUEZ. Mr. Speaker, are we telling the public health sector, the nurses,
that we are withdrawing what had been given them by the previous Congress,
Salary Grade 15, and we are demoting them to Salary Grade 11?

REP. CUA. Mr. Speaker, that is not exactly the sense of the resolution because at
the end of the day, what counts really is the amount of salary that they will begin
to bring home to their family.

While it is true that the salary grade that we are proposing is not a salary grade as
provided for in the Nursing Act, you would note that the salary that they will receive
or the take-home pay would be a substantial increase, more than 40 percent, Mr.
Speaker.
Mr. Speaker, I understand fully the well-meaning intention at that time. However, it
is unfortunate that, if that law would be implemented which will provide a Salary
Grade 15, that will make salaries of nurses, for example a Nurse I, higher than the
salary of a doctor. The doctor or Medical Officer I, under present legislation,
receives Salary Grade 14.

We will have a scenario, Mr. Speaker, if that law is implemented, where a nurse,
whose educational requirement is a four-year course, will be receiving a salary
higher than a lawyer, whose educational qualification requires him to study for as
long as eight years and pass the Bar.

We will have a scenario, Mr. Speaker, where a Nurse III for example, will receive a
salary higher than the chief of the hospital. So, it is for this reason, Mr. Speaker,
that implementing it, much as we want to because we understand the role that
nurses, play, may really endanger the entire compensation system which has been
standardized and has been set at all levels with regard to qualification and
responsibilities of the position holder, Mr. Speaker.

REP. RODRIGUEZ. Mr. Speaker, the reality is, we are losing our workers in the
public health sector. They have been going out of the country and precisely because
we have not been able to implement the Salary Grade 15 under the Nursing Act.
The solution is not to demote the salary grade from 15 to 11 by the mere expedient
of a joint resolution because a joint resolution, I believe, cannot amend the law.

Joint resolutions are, according to US jurisprudence, resolutions in Congress for

small matters that are taken up by the Congress. In this case, there is already a
law - the Nursing Act that provides for Salary Grade 15. The solution would have
been to increase the salaries of doctors so that the doctors, who have labored so
hard studying, would be able to get their due compensation.

Again, the health sector is very important for the well-being of the people. At the
proper time, Mr. Speaker, I would propose that we have an amendment that we
follow and implement the Nursing Act, instead of repealing the Nursing Act as far as
the salary grade of nurses [is] concerned.

May I now go to another point, Mr. Speaker.

REP. CUA (J.). Mr. Speaker, at the proper time, we will have an opportunity to
discuss that. But let me make a short comment to the proposal that the solution is
to increase the salaries of the doctors, rather, to set the salary grade of doctors
higher than that of nurses, which is being proposed as Salary Grade 15.

Mr. Speaker, we have asked the DBM to make some calculations. If we adopt such
a proposal, the budgetary implication of increasing the salaries of nurses to Salary
Grade 15 and correspondingly increase the salaries of doctors to higher grades,
would already mean a further requirement of more than P20 billion. And that is only
with respect to the public health sector, not to consider the budgetary implication to
say, lawyers and accountants who would naturally clamor for modification of their
salary increase.

Anyway, at the end of the day, Mr. Speaker, the salary grades, to my mind, is not
the determining factor. The determining factor really is the amount of salaries that,
at the end of the day or at the end of each pay day, a position holder brings home
to his or her family. And we feel very strongly that, at the levels of salaries we are
proposing, we have substantially increased the amount of salaries and thereby,
improving his ability to cope with economic condition presently obtaining, Mr.
Speaker.63

However, when Rep. Rodriguez proposed an amendment to upgrade the salary

grade of nurses pursuant to R.A. No. 9173, the proposal was not carried. 64

Similar considerations were, made in the Senate. The 27 May 2009

deliberations65 on Joint Resolution No. 4 showed that then Senator Alan Peter
Cayetano expressed the view that contrary to the DBM's position, not elevating the
nurses to Salary Grade 15 would perpetuate a wage distortion. Then Senator
Edgardo Angara (Senator Angara), however, stated that the implementation of R.A.
No. 9173 simultaneously with the salary standardization would widen the distortion
of salaries within the allied health professions. He added that the implementation
would affect almost 700,000 positions such as of lawyers and doctors, and the
financial impact for the first year would amount to P137 billion. Senator Angara also
pointed out that there was no move to grant Salary Grade 15 to nurses because it
is not only beyond the capacity of the government to pay but also because of the
gross distortion it would create within the nursing ranks and allied health
professions.66 Then Senator Pia Cayetano proposed amendments that included
increasing the salary grade of nurses to Salary Grade 15. However, Senator Angara
did not accept the proposal.67

The deliberations of 20 May 2009 also revealed the following exchange between
Rep. Ocampo and Rep. Cua:

REP. OCAMPO. Thank you for that explanation, Mr. Speaker, distinguished
colleague.

This Representation raises this point to stress the fact that he stands on the
importance of the legislature, its authority when it comes to the allocation of funds
and particularly, if for salary adjustments of workers of the State. There would be
no room for the assumption that it is the executive that would be practically telling
Congress how to adjust or to regulate the pay and allowances that are pertinent to
the workers of the government.

The other question pertains to previous legislations like the Magna Cartas - for
health workers, for teachers, the Nursing Act and for other sectors - that have not
been implemented thoroughly. And, it looks like under this joint resolution, there
appears to be a conflict or difference in the adjustment to be made and created and
all that, and thoroughly, as far as the health workers are concerned that they have
been coordinating with this Representation, they are fearful that the gains that they
have achieved in the Magna Carta for Health Workers, given the fact that it has not
been fully implemented, may be further eroded.

And so, this Representation perceives [the] fact that there is a provision that says
that benefits that would not be granted in the Magna Carta would not be disturbed
or be lower than they are. But then the implementation of the joint resolution has
ensured at the same time, the implementation of the Magna Carta?

REP. CUA. Yes, Mr. Speaker. As the Gentleman has mentioned, he is happy to know
that there is a:statement there ensuring that the Magna Carta benefits would not
be disturbed. And this is a clear pronouncement of the policy that we would like to
send. We are not touching, we are not going to reduce, we are not going to modify
benefits that are already provided in the existing Magna Carta laws.

What we are just trying to say is that we are empowering the Department of
Budget and Management to participate in the process so that the guidelines which
are not uniformly set now be made uniform. That is all we are saying here. But we
are very categorical in our statement, as you will read in one of the provisions, that
the benefits of the Magna Carta laws will not be disturbed, Mr. Speaker.

REP. OCAMPO. Yes. Now, there is another aspect to that, with regard to authorizing
the DBM ito make the necessary guidelines, rules and regulations on the grant of
Magna Carta benefits. Under the Magna Carta, they have consultative bodies,
councils, departments and officials previously authorized, and these are being taken
out in the joint resolution. Can it be possible to ensure that the representatives of
the health workers, for instance, be properly given due cognizance and
representation with the DBM? Is it possible for the resolution to be amended to
retain, or that such bodies that would coordinate can be consultative to the DBM?

I am emphasizing this fact because the passage of the Magna Carta of Health
Workers and of the Nurses Act [was] the by product of the assiduous work,
lobbying and organizing, so that by their strength, they were able to convince
Congress to enact such laws that would provide them the just compensation and
benefits.

Unfortunately, they have not been enjoying that because of the shortage of funds
from the national government. So, can that, at least, enable to give them a voice
whenever they think that the guidelines and actions of the DBM may be prejudicial
to their interest that they would be appropriately hurt.

REP. CUA. Mr. Speaker.

REP. OCAMPO. That would entail possibly some amendments which can be
introduced later.
REP. CUA. Yes, Mr. Speaker. Certainly, amendments can be proposed at the
opportune time with regard to that and I will defer to the collective wisdom of the
Chamber.

Let me explain this a little further, Mr. Speaker. If you will notice, we are not
leaving the whole exercise to the DBM. There is a statement there that says, "DBM,
in collaboration with the concerned agencies, will craft the guidelines." Certainly,
concerned agencies will definitely protect the interest of their constituents, and
what is going to happen here is that the DBM will just provide the balance, in a
way, in the process. If you will note, in the earlier scheme, of things, it was left
completely to the discretion of the lead agency and because of that, the guidelines
were not uniform. The guidelines were such that there is a bias towards the
constituencies of the lead agency. Therefore, the benefits, in fact, in some cases
were no longer appropriate. So in other words, we just want to put a balance here.
We categorically say that the benefits already achieved by the employees after a
long period of struggle will not be lost, Mr. Speaker. That is an assurance as it is
enshrined in the statement that we put there, Mr. Speaker.

REP. OCAMPO. Thank you for that assurance and I hope that it would be properly
provided. Also, with regard to hazard pay, possibly the provisions of the Magna
Carta, the definition of those who will benefit by hazard pay is in the resolution, but
the Magna Carta provides for hazard pay for those also categorized linder the
Magna Carta. Can there be an assurance that the same would apply, meaning to
say, that none of those guaranteed hazard pay under the Magna Carta will not be
denied?

REP. CUA. Yes, Mr. Speaker.

REP. OCAMPO. All right, thank you.

My last point is this: over the last several Congresses, when we were raising the
issue of implementing the Magna Carta of Health Workers, or implementing the
Nursing Act of 1992, even in the budget deliberations, the argument always
presented was that there were no sufficient funds available to implement these
legislations that have been mentioned earlier, that have been assiduously worked
for, struggled for, and won by the health workers and the nurses.

The rationale or the justification for not implementing the legislations was that the
government does not have funds. We have raised the issue of the huge amount of
the national income being allotted for automatic servicing of foreign debts and
other debts. And we have come closer to have a joint resolution calling for an audit
of foreign debts so that we could determine what foreign loans could be
renegotiated, could be condoned, could be forgotten altogether, so that we would
be able to reduce the huge amount that had been annually excluded from the lump
sum that is being the subject of appropriations. I reviewed in the earlier questions
that the distinguished Sponsor had argued that we could not change that policy, the
Automatic Appropriation Law, because it will have a negative impact on fiscal
policies. I think, it has a negative impact in fiscal policies, precisely they are
becoming lesser and lesser funds for social services on housing, health abd
education, and it is time that we revisit that.

This Representation would like to make a strong point: Let us have the political will
to look at the other side—review that weary argument that we will get in the losing
end if we—we just say—adhere to the palabra de honor that we have to service all
our debts, when even in the previous Congress, there had been items in the foreign
loans that had been found to be undeserving of services and we had initial inaction
to exclude from the servicing. This Representation strongly urges that we continue
with that thrust of asserting the sovereign power of the legislature in behalf of our
people, that we shall be throwing away the much needed funds that had been
coming through the treasury only in servicing of debts that had not been beneficial
to the people.

With that manifestation, thank you, Mr. Speaker. I thank the distinguished
Sponsor.68

An implementing resolution, like Joint Resolution No. 4, not being a

separate law itself, cannot amend prior laws. Such implementing
resolution can only implement the Salary Standardization Law, not repeal
its enabling law or prior laws. Joint Resolution No. 4 can only recommend to the
President m accordance with the authority given to the DBM under R.A. No. 6758.
Thus, the amendatory language in paragraph 16 of Joint Resolution No. 4 cannot
revise the salary grades in the Salary Standardization Law or in any other law like
R.A. No. 9173. The amendatory language in said paragraph 16 can only amend
prior congressional resolutions inconsistent with Joint Resolution No. 4.

Despite assurances that R.A. No. 9173 will not be affected, paragraph 16 of Joint
Resolution No. 4 expressly amended provisions of R.A. No. 9173 that are
inconsistent with said paragraph 16. Joint Resolution No. 4 also expressly repealed
all provisions of law and implementing rules and regulations prescribing salary
grades for government officials and employees other than those in Section 8 of R.A.
No. 6758. To repeat, paragraph 16 of Joint Resolution No. 4 provides:

xxxx

(16) Amendment of Existing Laws - The provisions of all laws, decrees,

executive orders, corporate charters, rules, regulations, circulars, approvals and
other issuances or parts thereof that are inconsistent with the provisions of
this Joint Resolution such as, but not limited to Republic Act No. 4670,
Republic Act No. 7160, Republic Act No. 7305, Republic Act No. 8439, Republic Act
No.. 8551, Executive Order No. 107 dated June 10, 1999, Republic Act No. 9286,
Republic Act No. 9166, Republic Act No. 9173 and Republic Act No. 9433 are
hereby amended.

All provisions of laws, executive orders, corporate charters, implementing

rules and regulations prescribing salary grades for government officials
and employees other than those in Section 8 of Republic Act No. 6758 are
hereby repealed. (Emphasis supplied)

Again, this amendment or repeal cannot be effected through a mere joint

resolution. Moreover, EO No. 811, not being a law, cannot also amend or repeal
Section 32 of R.A. No. 9173. There can be no dispute whatsoever that EO No. 811,
a mere presidential issuance, cannot amend or repeal a prior law. Nevertheless,
despite the continued existence and validity of Section 32 of R.A. No. 9173, this
Court cannot grant petitioners' prayer to compel respondents to implement Section
32 of R.A. No. 9173, an implementation that requires the' appropriation of
public funds through a law. The power of the purse belongs exclusively to
Congress under Sections 24 and 25, Article VI of the 1987 Constitution.

Section 29(1), Article VI of the 1987 Constitution mandates: "No money shall be
paid out of the Treasury except in pursuance of an appropriation made by
law." The power to appropriate public funds can only be made through a
law, and the power to enact a law is a purely legislative power. The Court
cannot compel Congress to fund Section 32 of R.A. No. 9173 as the power to
appropriate public funds is lodged solely in Congress. Unless Congress makes the
necessary appropriation through a law, Section 32 of R.A. No. 9173 will remain an
unfunded law, a situation that applies to many other laws.

Petitioners may lobby with Congress to fund through a law the implementation of
Section 32 of R.A. No. 9173. Congress may also review R.A. No. 6758 and pass
amendatory laws to reconcile the distortions in the salary grades of all government
employees. This Court, however, cannot dictate upon Congress which, under the
separation of powers, has the sole Constitutional power of the purse - the exclusive
power to appropriate public funds.69

WHEREFORE, we GRANT the petition in part by declaring that Section 32 of

Republic Act No. 9173 remains valid, and the provisions of paragraph 16 of Joint
Resolution No. 4 dated 28 July 2008 and Section 6 of Executive Order No. 811
dated 17 June 2009, purporting to amend or repeal Section 32 of Republic Act No.
9173, are hereby declared VOID and UNCONSTITUTIONAL. However,
we DISMISS the petition in part by refusing to compel the Executive Secretary, the
Secretary of Budget and Management and the Secretary of Health to implement
Section 32 of Republic Act No. 9173.

We NOTE the Motion-to-Intervene dated 28 May 2019 and DISMISS the Petition-

in-Intervention dated 28 May 2019, both filed by the Philippine Nurses Association,
Inc., on the ground that they were filed after the conclusion of the oral arguments.

SO ORDERED.

Bersamin, C.J., Peralta, Perlas-Bernabe, A. Reyes, Jr., J. Reyes, Jr., Carandang,

Lazaro-Javier, and Zalameda, JJ., concur.
Leonen, J., I concur. See separate opinion.
Caguioa, J., See Concurring and Dissenting Opinion.
Gesmundo, J., I join Justice Caguioa's separate opinion.
Hernando, J., I join in the Separate and Concurring Opinion of Justice Caguioa.
Inting, J., on official leave.
 3. Belgica v. Ochoa, G.R. No. 208566, November 19, 2013

G.R. No. 208566               November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF
BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA
V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his
capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by
FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.

x-----------------------x

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE
HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board

Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH
ABAD, DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1 -James Madison

Before the Court are consolidated petitions 2 taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject
matter, the Court shall heretofore discuss the system‘s conceptual underpinnings before
detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

 "Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may
be traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of
black slaves who would cast their famished bodies into the porcine feast to assuage
their hunger with morsels coming from the generosity of their well-fed master.4 This
practice was later compared to the actions of American legislators in trying to direct
federal budgets in favor of their districts.5 While the advent of refrigeration has made the
actual pork barrel obsolete, it persists in reference to political bills that "bring home the
bacon" to a legislator‘s district and constituents.6 In a more technical sense, "Pork
Barrel" refers to an appropriation of government spending meant for localized projects
and secured solely or primarily to bring money to a representative's district. 7 Some
scholars on the subject further use it to refer to legislative control of local appropriations. 8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum,

discretionary funds of Members of the Legislature, 9 although, as will be later discussed,
its usage would evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form
of "Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 3 12 provides that the sums
appropriated for certain public works projects13 "shall be distributed x x x subject
to the approval of a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section
provides that the said secretary, "with the approval of said joint committee, or of
the authorized members thereof, may, for the purposes of said distribution,
transfer unexpended portions of any item of appropriation under this Act to any
other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was
modified to the extent that the discretion of choosing projects was transferred
from the Secretary of Commerce and Communications to legislators. "For the
first time, the law carried a list of projects selected by Members of Congress, they
‘being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘" 16 During this period, the pork
barrel process commenced with local government councils, civil groups, and
individuals appealing to Congressmen or Senators for projects. Petitions that
were accommodated formed part of a legislator‘s allocation, and the amount
each legislator would eventually get is determined in a caucus convened by the
majority. The amount was then integrated into the administration bill prepared by
the Department of Public Works and Communications. Thereafter, the Senate
and the House of Representatives added their own provisions to the bill until it
was signed into law by the President – the Public Works Act. 17 In the 1960‘s,
 however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in

1972 after Martial Law was declared, an era when "one man controlled the
legislature,"19 the reprieve was only temporary. By 1982, the Batasang
Pambansa had already introduced a new item in the General Appropriations Act
(GAA) called the" Support for Local Development Projects" (SLDP) under the
article on "National Aid to Local Government Units". Based on reports, 20 it was
under the SLDP that the practice of giving lump-sum allocations to individual
legislators began, with each assemblyman receiving ₱500,000.00. Thereafter,
assemblymen would communicate their project preferences to the Ministry of
Budget and Management for approval. Then, the said ministry would release the
allocation papers to the Ministry of Local Governments, which would, in turn,
issue the checks to the city or municipal treasurers in the assemblyman‘s locality.
It has been further reported that "Congressional Pork Barrel" projects under the
SLDP also began to cover not only public works projects, or so- called "hard
projects", but also "soft projects",21 or non-public works projects such as those
which would fall under the categories of, among others, education, health and
livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of
Philippine democracy, "Congressional Pork Barrel" was revived in the form of the
"Mindanao Development Fund" and the "Visayas Development Fund" which were
created with lump-sum appropriations of ₱480 Million and ₱240 Million,
respectively, for the funding of development projects in the Mindanao and
Visayas areas in 1989. It has been documented23 that the clamor raised by the
Senators and the Luzon legislators for a similar funding, prompted the creation of
the "Countrywide Development Fund" (CDF) which was integrated into the 1990
GAA24 with an initial funding of ₱2.3 Billion to cover "small local infrastructure and
other priority community projects."

Under the GAAs for the years 1991 and 1992, 25 CDF funds were, with the
approval of the President, to be released directly to the implementing agencies
but "subject to the submission of the required list of projects and
activities."Although the GAAs from 1990 to 1992 were silent as to the amounts of
allocations of the individual legislators, as well as their participation in the
identification of projects, it has been reported26 that by 1992, Representatives
were receiving ₱12.5 Million each in CDF funds, while Senators were receiving
₱18 Million each, without any limitation or qualification, and that they could
identify any kind of project, from hard or infrastructure projects such as roads,
bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF
funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993
CDF Article included an allocation for the Vice-President.29 As such,
Representatives were allocated ₱12.5 Million each in CDF funds, Senators, ₱18
Million each, and the Vice-President, ₱20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on

project identification and fund release as found in the 1993 CDF Article. In
addition, however, the Department of Budget and Management (DBM) was
directed to submit reports to the Senate Committee on Finance and the House
Committee on Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in

consultation with the implementing agency concerned, were directed to submit to
the DBM the list of 50% of projects to be funded from their respective CDF
allocations which shall be duly endorsed by (a) the Senate President and the
Chairman of the Committee on Finance, in the case of the Senate, and (b) the
Speaker of the House of Representatives and the Chairman of the Committee on
Appropriations, in the case of the House of Representatives; while the list for the
remaining 50% was to be submitted within six (6) months thereafter. The same
article also stated that the project list, which would be published by the
DBM,35 "shall be the basis for the release of funds" and that "no funds
appropriated herein shall be disbursed for projects not included in the list herein
required."

The following year, or in 1998,36 the foregoing provisions regarding the required

lists and endorsements were reproduced, except that the publication of the
project list was no longer required as the list itself sufficed for the release of CDF
Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that
time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and
inserted into the GAA (called "Congressional Insertions" or "CIs") in order to
perpetuate the ad ministration‘s political agenda.37 It has been articulated that
since CIs "formed part and parcel of the budgets of executive departments, they
were not easily identifiable and were thus harder to monitor." Nonetheless, the
lawmakers themselves as well as the finance and budget officials of the
implementing agencies, as well as the DBM, purportedly knew about the
insertions.38 Examples of these CIs are the Department of Education (DepEd)
School Building Fund, the Congressional Initiative Allocations, the Public Works
Fund, the El Niño Fund, and the Poverty Alleviation Fund. 39 The allocations for
the School Building Fund, particularly, ―shall be made upon prior consultation
with the representative of the legislative district concerned.”40 Similarly, the
legislators had the power to direct how, where and when these appropriations
were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

 In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund," 43 the "Lingap Para Sa
Mahihirap Program Fund,"44 and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.

It was in the year 2000 46 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed,
with the sole condition that no amount shall be used to fund personal services
and other personnel benefits.47 The succeeding PDAF provisions remained the
same in view of the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a

single special provision ordering the release of the funds directly to the
implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision was present,
with simply an expansion of purpose and express authority to realign.
Nevertheless, the provisions in the 2003 budgets of the Department of Public
Works and Highways51 (DPWH) and the DepEd52 required prior consultation with
Members of Congress on the aspects of implementation delegation and project
list submission, respectively. In 2004, the 2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government
and shall be released directly to the implementing agencies." It also introduced
the program menu concept,55 which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may be
subsequently chosen by the identifying authority. The 2005 GAA was re-
enacted56 in 2006 and hence, operated on the same bases. In similar regard, the
program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the
specific amounts allocated for the individual legislators, as well as their
participation in the proposal and identification of PDAF projects to be funded. In
contrast to the PDAF Articles, however, the provisions under the DepEd School
Building Program and the DPWH budget, similar to its predecessors, explicitly
required prior consultation with the concerned Member of Congress61 anent
certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal
participation of non-governmental organizations (NGO) in the implementation of
government projects were introduced. In the Supplemental Budget for 2006, with
respect to the appropriation for school buildings, NGOs were, by law,
encouraged to participate. For such purpose, the law stated that "the amount of
 at least ₱250 Million of the ₱500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the
Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its
"Operation Barrio School" program, with capability and proven track records in
the construction of public school buildings x x x."62 The same allocation was
made available to NGOs in the 2007 and 2009 GAAs under the DepEd
Budget.63 Also, it was in 2007 that the Government Procurement Policy
Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of
negotiated procurement,67 the procedure whereby the Procuring Entity68 (the
implementing agency) may enter into a memorandum of agreement with an
NGO, provided that "an appropriation law or ordinance earmarks an amount to
be specifically contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the
201170 PDAF Article included an express statement on lump-sum amounts
allocated for individual legislators and the Vice-President: Representatives were
given ₱70 Million each, broken down into ₱40 Million for "hard projects" and ₱30
Million for "soft projects"; while ₱200 Million was given to each Senator as well as
the Vice-President, with a ₱100 Million allocation each for "hard" and "soft
projects." Likewise, a provision on realignment of funds was included, but with
the qualification that it may be allowed only once. The same provision also
allowed the Secretaries of Education, Health, Social Welfare and Development,
Interior and Local Government, Environment and Natural Resources, Energy,
and Public Works and Highways to realign PDAF Funds, with the further
conditions that: (a) realignment is within the same implementing unit and same
project category as the original project, for infrastructure projects; (b) allotment
released has not yet been obligated for the original scope of work, and (c) the
request for realignment is with the concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of

projects and/or designation of beneficiaries shall conform to the priority list,
standard or design prepared by each implementing agency (priority list
requirement) x x x." However, as practiced, it would still be the individual
legislator who would choose and identify the project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment 76 were included

in the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President,
which was pegged at ₱200 Million in the 2011 GAA, had been deleted. In
addition, the 2013 PDAF Article now allowed LGUs to be identified as
implementing agencies if they have the technical capability to implement the
projects.77 Legislators were also allowed to identify programs/projects, except for
assistance to indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of the intended
outside-district, endorsed by the Speaker of the House.78 Finally, any realignment
of PDAF funds, modification and revision of project identification, as well as
requests for release of funds, were all required to be favorably endorsed by the
 House Committee on Appropriations and the Senate Committee on Finance, as
the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the term‘s usage has expanded to include certain
funds of the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section
880 of Presidential Decree No. (PD) 910, 81 issued by then President Ferdinand E. Marcos
(Marcos) on March 22, 1976. In enacting the said law, Marcos recognized the need to
set up a special fund to help intensify, strengthen, and consolidate government efforts
relating to the exploration, exploitation, and development of indigenous energy
resources vital to economic growth.82 Due to the energy-related activities of the
government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep
Water Gas-to-Power Project",83 the special fund created under PD 910 has been
currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title
IV84 of PD 1869,85 or the Charter of the Philippine Amusement and Gaming Corporation
(PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983. More than two
(2) years after, he amended PD 1869 and accordingly issued PD 1993 on October 31,
1985,86 amending Section 1287 of the former law. As it stands, the Presidential Social
Fund has been described as a special funding facility managed and administered by the
Presidential Management Staff through which the President provides direct assistance to
priority programs and projects not funded under the regular budget. It is sourced from
the share of the government in the aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing
in no small part to previous Presidents who reportedly used the "Pork Barrel" in order to
gain congressional support.90 It was in 1996 when the first controversy surrounding the
"Pork Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo),
then an anonymous source, "blew the lid on the huge sums of government money that
regularly went into the pockets of legislators in the form of kickbacks." 91 He said that "the
kickbacks were ‘SOP‘ (standard operating procedure) among legislators and ranged
from a low 19 percent to a high 52 percent of the cost of each project, which could be
anything from dredging, rip rapping, sphalting, concreting, and construction of school
buildings."92 "Other sources of kickbacks that Candazo identified were public funds
intended for medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of August 13, 1996,
accompanied by an illustration of a roasted pig." 93 "The publication of the stories,
including those about congressional initiative allocations of certain lawmakers, including
₱3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any
pertinent evidentiary support that illegal misuse of PDAF in the form of kickbacks has
become a common exercise of unscrupulous Members of Congress," the petition was
dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began
its probe into allegations that "the government has been defrauded of some ₱10 Billion
over the past 10 years by a syndicate using funds from the pork barrel of lawmakers and
various government agencies for scores of ghost projects."96 The investigation was
spawned by sworn affidavits of six (6) whistle-blowers who declared that JLN
Corporation – "JLN" standing for Janet Lim Napoles (Napoles) – had swindled billions of
pesos from the public coffers for "ghost projects" using no fewer than 20 dummy NGOs
for an entire decade. While the NGOs were supposedly the ultimate recipients of PDAF
funds, the whistle-blowers declared that the money was diverted into Napoles‘ private
accounts.97 Thus, after its investigation on the Napoles controversy, criminal complaints
were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder,
and three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-
Graft and Corrupt Practices Act. Also recommended to be charged in the complaints are
some of the lawmakers‘ chiefs -of-staff or representatives, the heads and other officials
of three (3) implementing agencies, and the several presidents of the NGOs set up by
Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during
the last three (3) years of the Arroyo administration. The purpose of the audit was to
determine the propriety of releases of funds under PDAF and the Various Infrastructures
including Local Projects (VILP)100 by the DBM, the application of these funds and the
implementation of projects by the appropriate implementing agencies and several
government-owned-and-controlled corporations (GOCCs).101 The total releases covered
by the audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in VILP,
representing 58% and 32%, respectively, of the total PDAF and VILP releases that were
found to have been made nationwide during the audit period. 102 Accordingly, the Co A‘s
findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various Infrastructures including Local
Projects (VILP)," were made public, the highlights of which are as follows:103

● Amounts released for projects identified by a considerable number of

legislators significantly exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring

members of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated
under the 2007 to 2009 GAAs.

● Infrastructure projects were constructed on private lots without these having

been turned over to the government.

● Significant amounts were released to implementing agencies without the

latter‘s endorsement and without considering their mandated functions,
administrative and technical capabilities to implement projects.
 ● Implementation of most livelihood projects was not undertaken by the
implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred

seventy two (772) projects amount to ₱6.156 Billion were either found
questionable, or submitted questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of goods

and services reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million
from royalties in the operation of the Malampaya gas project off Palawan province
intended for agrarian reform beneficiaries has gone into a dummy NGO." 104 According to
incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as
of this writing, in the process of preparing "one consolidated report" on the Malampaya
Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the
"Pork Barrel System" be declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court
(Alcantara Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a
writ of prohibition be issued permanently restraining respondents Franklin M. Drilon and
Feliciano S. Belmonte, Jr., in their respective capacities as the incumbent Senate President and
Speaker of the House of Representatives, from further taking any steps to enact legislation
appropriating funds for the "Pork Barrel System," in whatever form and by whatever name it
may be called, and from approving further releases pursuant thereto. 106 The Alcantara Petition
was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez,

Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr.
(Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate
Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction dated
August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual
"Pork Barrel System," presently embodied in the provisions of the GAA of 2013 which provided
for the 2013 PDAF, and the Executive‘s lump-sum, discretionary funds, such as the Malampaya
Funds and the Presidential Social Fund,107 be declared unconstitutional and null and void for
being acts constituting grave abuse of discretion. Also, they pray that the Court issue a TRO
against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V.
De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of the
Department of Budget and Management (DBM), and National Treasurer, or their agents, for
them to immediately cease any expenditure under the aforesaid funds. Further, they pray that
the Court order the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years
2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for the
"inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and
remittances from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition

dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued restraining President Benigno Simeon
S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members of
Congress and, instead, allow their release to fund priority projects identified and approved by
the Local Development Councils in consultation with the executive departments, such as the
DPWH, the Department of Tourism, the Department of Health, the Department of
Transportation, and Communication and the National Economic Development Authority. 111 The
Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases;
(b) requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or
any of the persons acting under their authority from releasing (1) the remaining PDAF allocated
to Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase
"for such other purposes as may be hereafter directed by the President" pursuant to Section 8
of PD 910 but not for the purpose of "financing energy resource development and exploitation
programs and projects of the government‖ under the same provision; and (d) setting the
consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated
Comment (Comment) of even date before the Court, seeking the lifting, or in the alternative, the
partial lifting with respect to educational and medical assistance purposes, of the Court‘s
September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to
reply to the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a)
on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas
Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica
Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed
by the parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality
of the issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza
(Solicitor General) was directed to bring with him during the Oral Arguments representative/s
from the DBM and Congress who would be able to competently and completely answer
questions related to, among others, the budgeting process and its implementation. Further, the
CoA Chairperson was appointed as amicus curiae and thereby requested to appear before the
Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed
the parties to submit their respective memoranda within a period of seven (7) days, or until
October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main
issues for the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy; (b) the issues raised in the consolidated petitions are matters of policy
not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s
Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled
"Philippine Constitution Association v. Enriquez" 114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary of
Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the
"Pork Barrel System" under the principles of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks and
balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910, 116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the
Court shall also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

 The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, 117 namely: (a) there must be an actual
case or controversy calling for the exercise of judicial power; (b) the person challenging the act
must have the standing to question the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity ; and (d) the issue of constitutionality
must be the very lis mota of the case. 118 Of these requisites, case law states that the first two
are the most important119 and, therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. 121 In other words, "there must
be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law
and jurisprudence."122 Related to the requirement of an actual case or controversy is the
requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are
already ripe for adjudication. "A question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. It is a prerequisite that
something had then been accomplished or performed by either branch before a court may come
into the picture, and the petitioner must allege the existence of an immediate or threatened
injury to itself as a result of the challenged action."123 "Withal, courts will decline to pass upon
constitutional issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy
in these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of
the parties on the constitutionality of the "Pork Barrel System." Also, the questions in these
consolidated cases are ripe for adjudication since the challenged funds and the provisions
allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya
Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund – are currently
existing and operational; hence, there exists an immediate or threatened injury to petitioners as
a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes moot
when there is no more actual controversy between the parties or no useful purpose can be
served in passing upon the merits. 125 Differing from this description, the Court observes that
respondents‘ proposed line-item budgeting scheme would not terminate the controversy nor
diminish the useful purpose for its resolution since said reform is geared towards the 2014
budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally
effective and existing. Neither will the President‘s declaration that he had already "abolished the
PDAF" render the issues on PDAF moot precisely because the Executive branch of government
has no constitutional authority to nullify or annul its legal existence. By constitutional design, the
annulment or nullification of a law may be done either by Congress, through the passage of a
repealing law, or by the Court, through a declaration of unconstitutionality. Instructive on this
point is the following exchange between Associate Justice Antonio T. Carpio (Justice Carpio)
and the Solicitor General during the Oral Arguments:126

Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct?
Solicitor General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations
Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of
the PDAF, the President has a duty to execute the laws but in the face of the outrage over
PDAF, the President was saying, "I am not sure that I will continue the release of the soft
projects," and that started, Your Honor. Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the
power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5
of Book 6 of the Revised Administrative Code 128 x x x. So at most the President can suspend,
now if the President believes that the PDAF is unconstitutional, can he just refuse to implement
it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the
PDAF because of the CoA Report, because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have the report of the whistle-
blowers, the President was just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you
stop and investigate, and prosecute, he has done that. But, does that mean that PDAF has
been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a
law to repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners – they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability
and local autonomy.

The applicability of the second exception is also apparent from the nature of the interests
involved

– the constitutionality of the very system within which significant amounts of public funds have
been and continue to be utilized and expended undoubtedly presents a situation of exceptional
character as well as a matter of paramount public interest. The present petitions, in fact, have
been lodged at a time when the system‘s flaws have never before been magnified. To the
Court‘s mind, the coalescence of the CoA Report, the accounts of numerous whistle-blowers,
and the government‘s own recognition that reforms are needed "to address the reported abuses
of the PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the
importance of the matter. It is also by this finding that the Court finds petitioners‘ claims as not
merely theorized, speculative or hypothetical. Of note is the weight accorded by the Court to the
findings made by the CoA which is the constitutionally-mandated audit arm of the government.
In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoA‘s disallowance of
irregularly disbursed PDAF funds, it was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general audit power is among the
constitutional mechanisms that gives life to the check and balance system inherent in our form
of government.

It is the general policy of the Court to sustain the decisions of administrative authorities,
especially one which is constitutionally-created, such as the CoA, not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but also
finality when the decision and order are not tainted with unfairness or arbitrariness that would
amount to grave abuse of discretion. It is only when the CoA has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this
Court entertains a petition questioning its rulings. x x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy
in these cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the
CoA Chairperson estimates that thousands of notices of disallowances will be issued by her
office in connection with the findings made in the CoA Report. In this relation, Associate Justice
Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually
find their way to the courts.132 Accordingly, there is a compelling need to formulate controlling
principles relative to the issues raised herein in order to guide the bench, the bar, and the
public, not just for the expeditious resolution of the anticipated disallowance cases, but more
importantly, so that the government may be guided on how public funds should be utilized in
accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation
and passage of the national budget is, by constitutional imprimatur, an affair of annual
occurrence.133 The relevance of the issues before the Court does not cease with the passage of
a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by its multifarious
iterations throughout the course of history, lends a semblance of truth to petitioners‘ claim that
"the same dog will just resurface wearing a different collar." 135 In Sanlakas v. Executive
Secretary,136 the government had already backtracked on a previous course of action yet the
Court used the "capable of repetition but evading review" exception in order "to prevent similar
questions from re- emerging."137 The situation similarly holds true to these cases. Indeed, the
myriad of issues underlying the manner in which certain public funds are spent, if not resolved
at this most opportune time, are capable of repetition and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question
doctrine which, under the classic formulation of Baker v. Carr, 139 applies when there is found,
among others, "a textually demonstrable constitutional commitment of the issue to a coordinate
political department," "a lack of judicially discoverable and manageable standards for resolving
it" or "the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion." Cast against this light, respondents submit that the "the political branches
are in the best position not only to perform budget-related reforms but also to do them in
response to the specific demands of their constituents" and, as such, "urge the Court not to
impose a solution at this stage."140

The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal
questions which are within its province to resolve. A political question refers to "those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the Legislature or executive
branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure."141 The intrinsic constitutionality of the "Pork Barrel System" is not an
issue dependent upon the wisdom of the political branches of government but rather a legal one
which the Constitution itself has commanded the Court to act upon. Scrutinizing the contours of
the system along constitutional lines is a task that the political branches of government are
incapable of rendering precisely because it is an exercise of judicial power. More importantly,
the present Constitution has not only vested the Judiciary the right to exercise judicial power but
essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution
cannot be any clearer: "The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. It includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, 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 any branch or instrumentality of the Government." In
Estrada v. Desierto,142 the expanded concept of judicial power under the 1987 Constitution and
its effect on the political question doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also 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 government. Heretofore, the
judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of
its jurisdiction. With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. x x x (Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality
nullify or invalidate an act of the legislature or the executive, but only asserts the solemn and
sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably
cognizant of the reforms undertaken by its co-equal branches of government. But it is by
constitutional force that the Court must faithfully perform its duty. Ultimately, it is the Court‘s
avowed intention that a resolution of these cases would not arrest or in any manner impede the
endeavors of the two other branches but, in fact, help ensure that the pillars of change are
erected on firm constitutional grounds. After all, it is in the best interest of the people that each
great branch of government, within its own sphere, contributes its share towards achieving a
holistic and genuine solution to the problems of society. For all these reasons, the Court cannot
heed respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the validity
of the existing "Pork Barrel System" under which the taxes they pay have been and continue to
be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer from the
unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers have been
allowed to sue where there is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest." 148 The CoA Chairperson‘s
statement during the Oral Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of controls" 149 amplifies, in addition to the matters
above-discussed, the seriousness of the issues involved herein. Indeed, of greater import than
the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon
the fundamental law by the enforcement of an invalid statute. 150 All told, petitioners have
sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal with the effects of previous but
factually similar dispositions to subsequent cases. For the cases at bar, the Court examines the
applicability of these principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the
merits in a previous case rendered by a court of competent jurisdiction would bind a subsequent
case if, between the first and second actions, there exists an identity of parties, of subject
matter, and of causes of action.151 This required identity is not, however, attendant hereto since
Philconsa and LAMP, respectively involved constitutional challenges against the 1994 CDF
Article and 2004 PDAF Article, whereas the cases at bar call for a broader constitutional
scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is essentially a dismissal
based on a procedural technicality – and, thus, hardly a judgment on the merits – in that
petitioners therein failed to present any "convincing proof x x x showing that, indeed, there were
direct releases of funds to the Members of Congress, who actually spend them according to
their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF
in the form of kickbacks and has become a common exercise of unscrupulous Members of
Congress." As such, the Court up held, in view of the presumption of constitutionality accorded
to every law, the 2004 PDAF Article, and saw "no need to review or reverse the standing
pronouncements in the said case." Hence, for the foregoing reasons, the res judicata principle,
insofar as the Philconsa and LAMP cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle,
entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow if
the facts are substantially the same, even though the parties may be different. It proceeds from
the first principle of justice that, absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions relating to the same event have
been put forward by the parties similarly situated as in a previous case litigated and decided by
a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the same
issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision,
i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members of Congress to propose and
identify projects and activities to be funded by the CDF is an encroachment by the legislature on
executive power, since said power in an appropriation act is in implementation of the law" and
that "the proposal and identification of the projects do not involve the making of laws or the
repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following
main conclusions: one, under the Constitution, the power of appropriation, or the "power of the
purse," belongs to Congress; two, the power of appropriation carries with it the power to specify
the project or activity to be funded under the appropriation law and it can be detailed and as
broad as Congress wants it to be; and, three, the proposals and identifications made by
Members of Congress are merely recommendatory. At once, it is apparent that the Philconsa
resolution was a limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of Congress. On the
contrary, the present cases call for a more holistic examination of (a) the inter-relation between
the CDF and PDAF Articles with each other, formative as they are of the entire "Pork Barrel
System" as well as (b) the intra-relation of post-enactment measures contained within a
particular CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The complexity of the issues
and the broader legal analyses herein warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As
may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise in
allowing Members of Congress to propose and identify of projects would be that the said
identification authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may be easily seen. If
the authority to identify projects is an aspect of appropriation and the power of appropriation is a
form of legislative power thereby lodged in Congress, then it follows that: (a) it is Congress
which should exercise such authority, and not its individual Members; (b) such authority must be
exercised within the prescribed procedure of law passage and, hence, should not be exercised
after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has
the force of law and, hence, cannot be merely recommendatory. Justice Vitug‘s Concurring
Opinion in the same case sums up the Philconsa quandary in this wise: "Neither would it be
objectionable for Congress, by law, to appropriate funds for such specific projects as it may be
minded; to give that authority, however, to the individual members of Congress in whatever
guise, I am afraid, would be constitutionally impermissible." As the Court now largely benefits
from hindsight and current findings on the matter, among others, the CoA Report, the Court
must partially abandon its previous ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise that the same was merely
recommendatory. This postulate raises serious constitutional inconsistencies which cannot be
simply excused on the ground that such mechanism is "imaginative as it is innovative."
Moreover, it must be pointed out that the recent case of Abakada Guro Party List v.
Purisima155 (Abakada) has effectively overturned Philconsa‘s allowance of post-enactment
legislator participation in view of the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section
of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality
and, hence, has not set any controlling doctrine susceptible of current application to the
substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define
the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as
they are essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse." 156 They
assert that the following elements make up the Pork Barrel System: (a) lump-sum funds are
allocated through the appropriations process to an individual officer; (b) the officer is given sole
and broad discretion in determining how the funds will be used or expended; (c) the guidelines
on how to spend or use the funds in the appropriation are either vague, overbroad or inexistent;
and (d) projects funded are intended to benefit a definite constituency in a particular part of the
country and to help the political careers of the disbursing official by yielding rich patronage
benefits.157 They further state that the Pork Barrel System is comprised of two (2) kinds of
discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known
as the PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the
Malampaya Funds under PD 910 and the Presidential Social Fund under PD 1869, as amended
by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history, the
Court defines the Pork Barrel System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily intended for local projects, are
utilized through the respective participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System involves two (2) kinds of lump-sum
discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices. In particular, petitioners consider the PDAF,
as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-
enactment measure that allows individual legislators to wield a collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial departments of the
government."163 To the legislative branch of government, through Congress, 164 belongs the
power to make laws; to the executive branch of government, through the President, 165 belongs
the power to enforce laws; and to the judicial branch of government, through the
Court,166 belongs the power to interpret laws. Because the three great powers have been, by
constitutional design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive
has no authority to make or construe the law, and the judiciary has no power to make or
execute the law."168 The principle of separation of powers and its concepts of autonomy and
independence stem from the notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division, it is hoped, would avoid any
single branch from lording its power over the other branches or the citizenry. 169 To achieve this
purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of
independence would result in the inability of one branch of government to check the arbitrary or
self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct
that the principle of separation of powers may be violated in two (2) ways: firstly, "one branch
may interfere impermissibly with the other’s performance of its constitutionally assigned
function";171 and "alternatively, the doctrine may be violated when one branch assumes a
function that more properly is entrusted to another."172 In other words, there is a violation of the
principle when there is impermissible (a) interference with and/or (b) assumption of another
department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague 173 (Guingona, Jr.), the Court explained that the
phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the budget
execution cycle.174 This is rooted in the principle that the allocation of power in the three
principal branches of government is a grant of all powers inherent in them. 175 Thus, unless the
Constitution provides otherwise, the Executive department should exclusively exercise all roles
and prerogatives which go into the implementation of the national budget as provided under the
GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the
same is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that
"Congress enters the picture when it deliberates or acts on the budget proposals of the
President. Thereafter, Congress, "in the exercise of its own judgment and wisdom, formulates
an appropriation act precisely following the process established by the Constitution, which
specifies that no money may be paid from the Treasury except in accordance with an
appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -making
role necessarily comes to an end and from there the Executive‘s role of implementing the
national budget begins. So as not to blur the constitutional boundaries between them, Congress
must "not concern it self with details for implementation by the Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held
that "from the moment the law becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or enforcement of the law violates
the principle of separation of powers and is thus unconstitutional." 177 It must be clarified,
however, that since the restriction only pertains to "any role in the implementation or
enforcement of the law," Congress may still exercise its oversight function which is a
mechanism of checks and balances that the Constitution itself allows. But it must be made clear
that Congress‘ role must be confined to mere oversight. Any post-enactment-measure allowing
legislator participation beyond oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of executive functions. As the
Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and

investigation.1âwphi1 In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013
PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is
designed to allow individual legislators to interfere "way past the time it should have ceased" or,
particularly, "after the GAA is passed." 179 They state that the findings and recommendations in
the CoA Report provide "an illustration of how absolute and definitive the power of legislators
wield over project implementation in complete violation of the constitutional principle of
separation of powers."180 Further, they point out that the Court in the Philconsa case only
allowed the CDF to exist on the condition that individual legislators limited their role to
recommending projects and not if they actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been
violated since the President maintains "ultimate authority to control the execution of the GAA‖
and that he "retains the final discretion to reject" the legislators‘ proposals. 182 They maintain that
the Court, in Philconsa, "upheld the constitutionality of the power of members of Congress to
propose and identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special Provisions [of the 2013
PDAF Article follows the Philconsa framework, and hence, remains constitutional."184
The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional
Pork Barrel would be the authority of legislators to participate in the post-enactment phases of
project implementation.

At its core, legislators – may it be through project lists, 185 prior consultations186 or program
menus187 – have been consistently accorded post-enactment authority to identify the projects
they desire to be funded through various Congressional Pork Barrel allocations. Under the 2013
PDAF Article, the statutory authority of legislators to identify projects post-GAA may be
construed from the import of Special Provisions 1 to 3 as well as the second paragraph of
Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature
which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general program listed in the said
menu. Relatedly, Special Provision 2 provides that the implementing agencies shall, within 90
days from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator may make
his choice. The same provision further authorizes legislators to identify PDAF projects outside
his district for as long as the representative of the district concerned concurs in writing.
Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be identified by
legislators"188 and thereunder provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable endorsement
to the DBM or the implementing agency, as the case may be." From the foregoing special
provisions, it cannot be seriously doubted that legislators have been accorded post-enactment
authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. Under the 2013 PDAF Article,
the statutory authority of legislators to participate in the area of fund release through
congressional committees is contained in Special Provision 5 which explicitly states that "all
request for release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations and the Senate
Committee on Finance, as the case may be"; while their statutory authority to participate in the
area of fund realignment is contained in: first , paragraph 2, Special Provision 4 189 which
explicitly state s, among others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable endorsement
to the DBM or the implementing agency, as the case may be‖ ; and, second , paragraph 1, also
of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy,
Interior and Local Government, Labor and Employment, Public Works and Highways, Social
Welfare and Development and Trade and Industry 190 x x x to approve realignment from one
project/scope to another within the allotment received from this Fund, subject to among others
(iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The
fundamental rule, as categorically articulated in Abakada, cannot be overstated – from the
moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional. 191 That the said authority is treated as
merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition,
to repeat, covers any role in the implementation or enforcement of the law. Towards this end,
the Court must therefore abandon its ruling in Philconsa which sanctioned the conduct of
legislator identification on the guise that the same is merely recommendatory and, as such,
respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite
the contrary, respondents – through the statements of the Solicitor General during the Oral
Arguments – have admitted that the identification of the legislator constitutes a mandatory
requirement before his PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is
no identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a
SARO and the NCA. And the SARO and the NCA are triggered by an identification from the
legislator.
xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory
in the sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify,
he cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only
in that sense, Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as
all other provisions of law which similarly allow legislators to wield any form of post-enactment
authority in the implementation or enforcement of the budget, unrelated to congressional
oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary
thereto, informal practices, through which legislators have effectively intruded into the proper
phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to
lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment. That
such informal practices do exist and have, in fact, been constantly observed throughout the
years has not been substantially disputed here. As pointed out by Chief Justice Maria Lourdes
P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases: 193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of
Congress, if we enforces the initial thought that I have, after I had seen the extent of this
research made by my staff, that neither the Executive nor Congress frontally faced the question
of constitutional compatibility of how they were engineering the budget process. In fact, the
words you have been using, as the three lawyers of the DBM, and both Houses of Congress
has also been using is surprise; surprised that all of these things are now surfacing. In fact, I
thought that what the 2013 PDAF provisions did was to codify in one section all the past
practice that had been done since 1991. In a certain sense, we should be thankful that they are
all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies,
else the Executive department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively

exercised by the body to which the Constitution has conferred the same. In particular, Section 1,
Article VI of the 1987 Constitution states that such power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and referendum. 195 Based on this
provision, it is clear that only Congress, acting as a bicameral body, and the people, through the
process of initiative and referendum, may constitutionally wield legislative power and no other.
This premise embodies the principle of non-delegability of legislative power, and the only
recognized exceptions thereto would be: (a) delegated legislative power to local governments
which, by immemorial practice, are allowed to legislate on purely local matters; 196 and (b)
constitutionally-grafted exceptions such as the authority of the President to, by law, exercise
powers necessary and proper to carry out a declared national policy in times of war or other
national emergency,197 or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate

rule-making authority to implementing agencies for the limited purpose of either filling up the
details of the law for its enforcement (supplementary rule-making) or ascertaining facts to bring
the law into actual operation (contingent rule-making).199 The conceptual treatment and
limitations of delegated rule-making were explained in the case of People v. Maceren 200 as
follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public interest
are necessary because of "the growing complexity of modern life, the multiplication of the
subjects of governmental regulations, and the increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace
matters not covered by the statute. Rules that subvert the statute cannot be sanctioned.
(Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress. 201 That the power to
appropriate must be exercised only through legislation is clear from Section 29(1), Article VI of
the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." To understand what constitutes an act of
appropriation, the Court, in Bengzon v. Secretary of Justice and Insular Auditor 202 (Bengzon),
held that the power of appropriation involves (a) the setting apart by law of a certain sum from
the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a)
how much from such fund would go to (b) a specific project or beneficiary that they themselves
also determine. As these two (2) acts comprise the exercise of the power of appropriation as
described in Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to
perform the same, undoubtedly, said legislators have been conferred the power to legislate
which the Constitution does not, however, allow. Thus, keeping with the principle of non-
delegability of legislative power, the Court hereby declares the 2013 PDAF Article, as well as all
other forms of Congressional Pork Barrel which contain the similar legislative identification
feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct
does not mean that they are absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the President’s power to veto
an item written into an appropriation, revenue or tariff bill submitted to him by Congress for
approval through a process known as "bill presentment." The President‘s item-veto power is
found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may
exercise his power of item-veto, forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the Constitution. 204 As stated in
Abakada, the final step in the law-making process is the "submission of the bill to the President
for approval. Once approved, it takes effect as law after the required publication."205

Elaborating on the President‘s item-veto power and its relevance as a check on the legislature,
the Court, in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief
Executive an integral part of the law-making power. His disapproval of a bill, commonly known
as a veto, is essentially a legislative act. The questions presented to the mind of the Chief
Executive are precisely the same as those the legislature must determine in passing a bill,
except that his will be a broader point of view.

The Constitution is a limitation upon the power of the legislative department of the government,
but in this respect it is a grant of power to the executive department. The Legislature has the
affirmative power to enact laws; the Chief Executive has the negative power by the
constitutional exercise of which he may defeat the will of the Legislature. It follows that the Chief
Executive must find his authority in the Constitution. But in exercising that authority he may not
be confined to rules of strict construction or hampered by the unwise interference of the
judiciary. The courts will indulge every intendment in favor of the constitutionality of a veto in the
same manner as they will presume the constitutionality of an act as originally passed by the
Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as to
prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify
the executive branch‘s role in the budgetary process.208 In Immigration and Naturalization
Service v. Chadha, the US Supreme Court characterized the President‘s item-power as "a
salutary check upon the legislative body, calculated to guard the community against the effects
of factions, precipitancy, or of any impulse unfriendly to the public good, which may happen to
influence a majority of that body"; phrased differently, it is meant to "increase the chances in
favor of the community against the passing of bad laws, through haste, inadvertence, or
design."209

For the President to exercise his item-veto power, it necessarily follows that there exists a
proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific

appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may
be able to exercise his power of item veto, must contain "specific appropriations of money" and
not only "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized
by singular correspondence – meaning an allocation of a specified singular amount for a
specified singular purpose, otherwise known as a "line-item." 211 This treatment not only allows
the item to be consistent with its definition as a "specific appropriation of money" but also
ensures that the President may discernibly veto the same. Based on the foregoing formulation,
the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations
which state a specified amount for a specific purpose, would then be considered as "line- item"
appropriations which are rightfully subject to item veto. Likewise, it must be observed that an
appropriation may be validly apportioned into component percentages or values; however, it is
crucial that each percentage or value must be allocated for its own corresponding purpose for
such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly
pointed out, a valid appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose, e.g., MOOE (maintenance and
other operating expenses), in which case the related purposes shall be deemed sufficiently
specific for the exercise of the President‘s item veto power. Finally, special purpose funds and
discretionary funds would equally square with the constitutional mechanism of item-veto for as
long as they follow the rule on singular correspondence as herein discussed. Anent special
purpose funds, it must be added that Section 25(4), Article VI of the 1987 Constitution requires
that the "special appropriations bill shall specify the purpose for which it is intended, and shall
be supported by funds actually available as certified by the National Treasurer, or t o be raised
by a corresponding revenue proposal therein." Meanwhile, with respect to discretionary funds,
Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers and subject to such guidelines
as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a
singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since
such appropriation type necessitates the further determination of both the actual amount to be
expended and the actual purpose of the appropriation which must still be chosen from the
multiple purposes stated in the law, it cannot be said that the appropriation law already indicates
a "specific appropriation of money‖ and hence, without a proper line-item which the President
may veto. As a practical result, the President would then be faced with the predicament of either
vetoing the entire appropriation if he finds some of its purposes wasteful or undesirable, or
approving the entire appropriation so as not to hinder some of its legitimate purposes. Finally, it
may not be amiss to state that such arrangement also raises non-delegability issues considering
that the implementing authority would still have to determine, again, both the actual amount to
be expended and the actual purpose of the appropriation. Since the foregoing determinations
constitute the integral aspects of the power to appropriate, the implementing authority would, in
effect, be exercising legislative prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the projects after the passage of the GAA denies
the President the chance to veto that item later on." 212 Accordingly, they submit that the "item
veto power of the President mandates that appropriations bills adopt line-item budgeting" and
that "Congress cannot choose a mode of budgeting which effectively renders the
constitutionally-given power of the President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process
which is intended to meet the demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations which are barely foreseen when a
GAA is enacted. They argue that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators who
would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been
written into the General Appropriations Bill and thus effectuated without veto consideration. This
kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation
of a budget within a budget" which subverts the prescribed procedure of presentment and
consequently impairs the President‘s power of item veto. As petitioners aptly point out, the
above-described system forces the President to decide between (a) accepting the entire ₱24.79
Billion PDAF allocation without knowing the specific projects of the legislators, which may or
may not be consistent with his national agenda and (b) rejecting the whole PDAF to the
detriment of all other legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF
Article would remain constitutionally flawed since it would then operate as a prohibited form of
lump-sum appropriation above-characterized. In particular, the lump-sum amount of ₱24.79
Billion would be treated as a mere funding source allotted for multiple purposes of spending,
i.e., scholarships, medical missions, assistance to indigents, preservation of historical materials,
construction of roads, flood control, etc. This setup connotes that the appropriation law leaves
the actual amounts and purposes of the appropriation for further determination and, therefore,
does not readily indicate a discernible item which may be subject to the President‘s power of
item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that
would aid in more stringently auditing the utilization of said Funds." 216 Accordingly, she
recommends the adoption of a "line by line budget or amount per proposed program, activity or
project, and per implementing agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as
all Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such
budgeting system provides for a greater degree of flexibility to account for future contingencies
cannot be an excuse to defeat what the Constitution requires. Clearly, the first and essential
truth of the matter is that unconstitutional means do not justify even commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork
Barrel operate defies public accountability as it renders Congress incapable of checking itself or
its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget" which
turns them "from fiscalizers" into "financially-interested partners." 219 They also claim that the
system has an effect on re- election as "the PDAF excels in self-perpetuation of elective
officials." Finally, they add that the "PDAF impairs the power of impeachment" as such "funds
are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of the
Constitution which embodies the parameters of the people‘s trust. The notion of a public trust
connotes accountability,221 hence, the various mechanisms in the Constitution which are
designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds
may be checked is the power of congressional oversight. As mentioned in
Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress‘ power of appropriation and the budget hearings conducted in connection
with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation; 223 or (b)
investigation and monitoring of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested "observers"
when scrutinizing, investigating or monitoring the implementation of the appropriation law. To a
certain extent, the conduct of oversight would be tainted as said legislators, who are vested with
post-enactment authority, would, in effect, be checking on activities in which they themselves
participate. Also, it must be pointed out that this very same concept of post-enactment
authorization runs afoul of Section 14, Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as
counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be interested financially in any
contract with, or in any franchise or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-owned or controlled
corporation, or its subsidiary, during his term of office. He shall not intervene in any matter
before any office of the Government for his pecuniary benefit or where he may be called upon to
act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a

matter before another office of government – renders them susceptible to taking undue
advantage of their own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or
the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in
office. Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be linked
to this area of interest, the use of his PDAF for re-election purposes is a matter which must be
analyzed based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the former‘s post-enactment participation,
may affect the process of impeachment, this matter largely borders on the domain of politics
and does not strictly concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an
improper subject of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section
14, Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF
Article and other forms of Congressional Pork Barrel of similar nature are deemed as
unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members
of political dynasties to accumulate funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing
due to the qualifying phrase "as may be defined by law." In this respect, said provision does not,
by and of itself, provide a judicially enforceable constitutional right but merely specifies guideline
for legislative or executive action. 226 Therefore, since there appears to be no standing law which
crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on
this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative
since it has not been properly demonstrated how the Pork Barrel System would be able to
propagate political dynasties.
5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2
and 3, Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among
the different local government units their powers, responsibilities, and resources, and provide for
the qualifications, election, appointment and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to the organization and operation of the
local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government

Code of 1991" (LGC), wherein the policy on local autonomy had been more specifically
explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial
and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant communities and make them more
effective partners in the attainment of national goals. Toward this end, the State shall provide for
a more responsive and accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization shall proceed from the National
Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, nongovernmental and people‘s
organizations, and other concerned sectors of the community before any project or program is
implemented in their respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by the Court in Philippine
Gamefowl Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of
local autonomy which is intended to provide the needed impetus and encouragement to the
development of our local political subdivisions as "self - reliant communities." In the words of
Jefferson, "Municipal corporations are the small republics from which the great one derives its
strength." The vitalization of local governments will enable their inhabitants to fully exploit their
resources and more important, imbue them with a deepened sense of involvement in public
affairs as members of the body politic. This objective could be blunted by undue interference by
the national government in purely local affairs which are best resolved by the officials and
inhabitants of such political units. The decision we reach today conforms not only to the letter of
the pertinent laws but also to the spirit of the Constitution. 229 (Emphases and underscoring
supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local
development.230 The Court agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is
also a recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project." 231 Drawing strength from this
pronouncement, previous legislators justified its existence by stating that "the relatively small
projects implemented under the Congressional Pork Barrel complement and link the national
development goals to the countryside and grassroots as well as to depressed areas which are
overlooked by central agencies which are preoccupied with mega-projects. 232 Similarly, in his
August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President Aquino
mentioned that the Congressional Pork Barrel was originally established for a worthy goal,
which is to enable the representatives to identify projects for communities that the LGU
concerned cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system
which actually belies the avowed intention of "making equal the unequal." In particular, the
Court observes that the gauge of PDAF and CDF allocation/division is based solely on the fact
of office, without taking into account the specific interests and peculiarities of the district the
legislator represents. In this regard, the allocation/division limits are clearly not based on
genuine parameters of equality, wherein economic or geographic indicators have been taken
into consideration. As a result, a district representative of a highly-urbanized metropolis gets the
same amount of funding as a district representative of a far-flung rural province which would be
relatively "underdeveloped" compared to the former. To add, what rouses graver scrutiny is that
even Senators and Party-List Representatives – and in some years, even the Vice-President –
who do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to
make equal the unequal." Ultimately, the PDAF and CDF had become personal funds under the
effective control of each legislator and given unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in setting the direction of economic
and social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially
geared towards managing local affairs,235 their programs, policies and resolutions should not be
overridden nor duplicated by individual legislators, who are national officers that have no law-
making authority except only when acting as a body. The undermining effect on local autonomy
caused by the post-enactment authority conferred to the latter was succinctly put by petitioners
in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of personality-
driven project identification has not only contributed little to the overall development of the
district, but has even contributed to "further weakening infrastructure planning and coordination
efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended
by PD 1993), which respectively provide for the Malampaya Funds and the Presidential Social
Fund, as invalid appropriations laws since they do not have the "primary and specific" purpose
of authorizing the release of public funds from the National Treasury. Petitioners submit that
Section 8 of PD 910 is not an appropriation law since the "primary and specific‖ purpose of PD
910 is the creation of an Energy Development Board and Section 8 thereof only created a
Special Fund incidental thereto.237 In similar regard, petitioners argue that Section 12 of PD
1869 is neither a valid appropriations law since the allocation of the Presidential Social Fund is
merely incidental to the "primary and specific" purpose of PD 1869 which is the amendment of
the Franchise and Powers of PAGCOR. 238 In view of the foregoing, petitioners suppose that
such funds are being used without any valid law allowing for their proper appropriation in
violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall
be paid out of the Treasury except in pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of the
word "appropriation," which means "to allot, assign, set apart or apply to a particular use or
purpose," and hence, if written into the law, demonstrate that the legislative intent to appropriate
exists. As the Constitution "does not provide or prescribe any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except
that it be ‘made by law,‘" an appropriation law may – according to Philconsa – be "detailed and
as broad as Congress wants it to be" for as long as the intent to appropriate may be gleaned
from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of words
or religious recitals in which an authorization or appropriation by Congress shall be made,
except that it be "made by law," such as precisely the authorization or appropriation under the
questioned presidential decrees. In other words, in terms of time horizons, an appropriation may
be made impliedly (as by past but subsisting legislations) as well as expressly for the current
fiscal year (as by enactment of laws by the present Congress), just as said appropriation may
be made in general as well as in specific terms. The Congressional authorization may be
embodied in annual laws, such as a general appropriations act or in special provisions of laws
of general or special application which appropriate public funds for specific public purposes,
such as the questioned decrees. An appropriation measure is sufficient if the legislative
intention clearly and certainly appears from the language employed (In re Continuing
Appropriations, 32 P. 272), whether in the past or in the present. (Emphases and underscoring
supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the

designated purpose. The word appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the constitution means the setting
apart a portion of the public funds for a public purpose. No particular form of words is necessary
for the purpose, if the intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation
must be the "primary and specific" purpose of the law in order for a valid appropriation law to
exist. To reiterate, if a legal provision designates a determinate or determinable amount of
money and allocates the same for a particular public purpose, then the legislative intent to
appropriate becomes apparent and, hence, already sufficient to satisfy the requirement of an
"appropriation made by law" under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from
service contracts and agreements such as application and processing fees, signature bonus,
discovery bonus, production bonus; all money collected from concessionaires, representing
unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production share on service contracts and
similar payments on the exploration, development and exploitation of energy resources, shall
form part of a Special Fund to be used to finance energy resource development and exploitation
programs and projects of the government and for such other purposes as may be hereafter
directed by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax,
the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
₱150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the priority
infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of
the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that
(a) Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and
receipts of the Energy Development Board from any and all sources" (a determinable amount)
"to be used to finance energy resource development and exploitation programs and projects of
the government and for such other purposes as may be hereafter directed by the President" (a
specified public purpose), and (b) Section 12 of PD 1869, as amended by PD 1993, which
similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent
share of the Government in the aggregate gross earnings of PAGCOR, or 60%, if the aggregate
gross earnings be less than ₱150,000,000.00" (also a determinable amount) "to finance the
priority infrastructure development projects and x x x the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of
the Philippines" (also a specified public purpose), are legal appropriations under Section 29(1),
Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate
appropriations. These intermediate appropriations are the actual appropriations meant for
enforcement and since they are made by individual legislators after the GAA is passed, they
occur outside the law. As such, the Court observes that the real appropriation made under the
2013 PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF, but rather the post-
enactment determinations made by the individual legislators which are, to repeat, occurrences
outside of the law. Irrefragably, the 2013 PDAF Article does not constitute an "appropriation
made by law" since it, in its truest sense, only authorizes individual legislators to appropriate in
violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue

delegation of legislative power since the phrase "and for such other purposes as may be
hereafter directed by the President" gives the President "unbridled discretion to determine for
what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to
apply the principle of ejusdem generis to the same section and thus, construe the phrase "and
for such other purposes as may be hereafter directed by the President" to refer only to other
purposes related "to energy resource development and exploitation programs and projects of
the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate
legislative guidelines if the same law delegates rule-making authority to the Executive 245 either
for the purpose of (a) filling up the details of the law for its enforcement, known as
supplementary rule-making, or (b) ascertaining facts to bring the law into actual operation,
referred to as contingent rule-making.246 There are two (2) fundamental tests to ensure that the
legislative guidelines for delegated rule-making are indeed adequate. The first test is called the
"completeness test." Case law states that a law is complete when it sets forth therein the policy
to be executed, carried out, or implemented by the delegate. On the other hand, the second test
is called the "sufficient standard test." Jurisprudence holds that a law lays down a sufficient
standard when it provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate‘s authority and prevent the delegation from running riot. 247 To be
sufficient, the standard must specify the limits of the delegate‘s authority, announce the
legislative policy, and identify the conditions under which it is to be implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes
an undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the President‘s authority with respect to the purpose for which
the Malampaya Funds may be used. As it reads, the said phrase gives the President wide
latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows
him to unilaterally appropriate public funds beyond the purview of the law. That the subject
phrase may be confined only to "energy resource development and exploitation programs and
projects of the government" under the principle of ejusdem generis, meaning that the general
word or phrase is to be construed to include – or be restricted to – things akin to, resembling, or
of the same kind or class as those specifically mentioned, 249 is belied by three (3) reasons: first,
the phrase "energy resource development and exploitation programs and projects of the
government" states a singular and general class and hence, cannot be treated as a statutory
reference of specific things from which the general phrase "for such other purposes" may be
limited; second, the said phrase also exhausts the class it represents, namely energy
development programs of the government;250 and, third, the Executive department has, in fact,
used the Malampaya Funds for non-energy related purposes under the subject phrase, thereby
contradicting respondents‘ own position that it is limited only to "energy resource development
and exploitation programs and projects of the government." 251 Thus, while Section 8 of PD 910
may have passed the completeness test since the policy of energy development is clearly
deducible from its text, the phrase "and for such other purposes as may be hereafter directed by
the President" under the same provision of law should nonetheless be stricken down as
unconstitutional as it lies independently unfettered by any sufficient standard of the delegating
law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows
for the use of the Malampaya Funds "to finance energy resource development and exploitation
programs and projects of the government," remains legally effective and subsisting. Truth be
told, the declared unconstitutionality of the aforementioned phrase is but an assurance that the
Malampaya Funds would be used – as it should be used – only in accordance with the avowed
purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of
PD 1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on
the same.252 Nevertheless, since the amendatory provision may be readily examined under the
current parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential

Social Fund may be used "to first, finance the priority infrastructure development projects and
second, to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines." The Court finds
that while the second indicated purpose adequately curtails the authority of the President to
spend the Presidential Social Fund only for restoration purposes which arise from calamities,
the first indicated purpose, however, gives him carte blanche authority to use the same fund for
any infrastructure project he may so determine as a "priority". Verily, the law does not supply a
definition of "priority in frastructure development projects" and hence, leaves the President
without any guideline to construe the same. To note, the delimitation of a project as one of
"infrastructure" is too broad of a classification since the said term could pertain to any kind of
facility. This may be deduced from its lexicographic definition as follows: "the underlying
framework of a system, especially public services and facilities (such as highways, schools,
bridges, sewers, and water-systems) needed to support commerce as well as economic and
residential development."253 In fine, the phrase "to finance the priority infrastructure development
projects" must be stricken down as unconstitutional since – similar to the above-assailed
provision under Section 8 of PD 910 – it lies independently unfettered by any sufficient standard
of the delegating law. As they are severable, all other provisions of Section 12 of PD 1869, as
amended by PD 1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court
did so in the context of its pronouncements made in this Decision – petitioners equally pray that
the Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a)
"the complete schedule/list of legislators who have availed of their PDAF and VILP from the
years 2003 to 2013, specifying the use of the funds, the project or activity and the recipient
entities or individuals, and all pertinent data thereto" (PDAF Use Schedule/List); 254 and (b) "the
use of the Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x
x x project or activity and the recipient entities or individuals, and all pertinent data
thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is grounded on Section 28, Article
II and Section 7, Article III of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access
to official records, and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may be provided by law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on the part of said agencies.
Certainly, its performance cannot be made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical
exercise of agency discretion. The constitutional duty, not being discretionary, its performance
may be compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional
guarantee. (Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr. 257 (Valmonte), it has been clarified that the
right to information does not include the right to compel the preparation of "lists, abstracts,
summaries and the like." In the same case, it was stressed that it is essential that the "applicant
has a well -defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information. The pertinent
portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel custodians
of official records to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a
well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty
of defendant to perform the act required. The corresponding duty of the respondent to perform
the required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus
actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary and/or the DBM of their requested
PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any
law or administrative issuance which would form the bases of the latter‘s duty to furnish them
with the documents requested. While petitioners pray that said information be equally released
to the CoA, it must be pointed out that the CoA has not been impleaded as a party to these
cases nor has it filed any petition before the Court to be allowed access to or to compel the
release of any official document relevant to the conduct of its audit investigations. While the
Court recognizes that the information requested is a matter of significant public concern,
however, if only to ensure that the parameters of disclosure are properly foisted and so as not to
unduly hamper the equally important interests of the government, it is constrained to deny
petitioners‘ prayer on this score, without prejudice to a proper mandamus case which they, or
even the CoA, may choose to pursue through a separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be
furnished with such schedule/list and report and not in any way deny them, or the general
public, access to official documents which are already existing and of public record. Subject to
reasonable regulation and absent any valid statutory prohibition, access to these documents
should not be proscribed. Thus, in Valmonte, while the Court denied the application for
mandamus towards the preparation of the list requested by petitioners therein, it nonetheless
allowed access to the documents sought for by the latter, subject, however, to the custodian‘s
reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of the records may be avoided, that
undue interference with the duties of the custodian of the records may be prevented and that
the right of other persons entitled to inspect the records may be insured Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to
the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executive‘s Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is
generally left to the prerogative of the political branches of government. Hence, lest the Court
itself overreach, it must equally deny their prayer on this score.

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept
of released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the
release of the remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No.
2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented and
disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that
said SARO had been obligated by the implementing agency concerned prior to the issuance of
the Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does
not yet involve the release of funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]." 261 As such, PDAF disbursements, even if
covered by an obligated SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and
unobligated allotments." They explain that once a SARO has been issued and obligated by the
implementing agency concerned, the PDAF funds covered by the same are already "beyond the
reach of the TRO because they cannot be considered as ‘remaining PDAF.‘" They conclude that
this is a reasonable interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10,
2013 TRO should be lifted is a matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein has the consequential effect of
converting the temporary injunction into a permanent one. Hence, from the promulgation of this
Decision, the release of the remaining PDAF funds for 2013, among others, is now permanently
enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be
resolved as it has a practical impact on the execution of the current Decision. In particular, the
Court must resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the
time this Decision is promulgated, may still be disbursed following the DBM‘s interpretation in
DBM Circular 2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to
incur obligations not exceeding a given amount during a specified period for the purpose
indicated. It shall cover expenditures the release of which is subject to compliance with specific
laws or regulations, or is subject to separate approval or clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an
obligation and not the directive to pay. Practically speaking, the SARO does not have the direct
and immediate effect of placing public funds beyond the control of the disbursing authority. In
fact, a SARO may even be withdrawn under certain circumstances which will prevent the actual
release of funds. On the other hand, the actual release of funds is brought about by the
issuance of the NCA,264 which is subsequent to the issuance of a SARO. As may be determined
from the statements of the DBM representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to
obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the
treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it comes
after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized government-
disbursing banks to, therefore, pay the payees depending on the projects or projects covered by
the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs
issued are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have
been "released." In this respect, therefore, the disbursement of 2013 PDAF funds which are
only covered by obligated SAROs, and without any corresponding NCAs issued, must, at the
time of this Decision’s promulgation, be enjoined and consequently reverted to the
unappropriated surplus of the general fund. Verily, in view of the declared unconstitutionality of
the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be disbursed even
though already obligated, else the Court sanctions the dealing of funds coming from an
unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have
been obligated but not released – meaning, those merely covered by a SARO – under the
phrase "and for such other purposes as may be hereafter directed by the President" pursuant to
Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund under the phrase
"to finance the priority infrastructure development projects" pursuant to Section 12 of PD 1869,
as amended by PD 1993, which were altogether declared by the Court as unconstitutional.
However, these funds should not be reverted to the general fund as afore-stated but instead,
respectively remain under the Malampaya Funds and the Presidential Social Fund to be utilized
for their corresponding special purposes not otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality
of (a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be
hereafter directed by the President" under Section 8 of PD 910, and (2) "to finance the priority
infrastructure development projects" under Section 12 of PD 1869, as amended by PD 1993,
must only be treated as prospective in effect in view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that
precisely because the judiciary is the governmental organ which has the final say on whether or
not a legislative or executive measure is 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 to
deprive the law of its quality of fairness and justice then, if there be no recognition of what had
transpired prior to such adjudication."267 "In the language of an American Supreme Court
decision: ‘The actual existence of a statute, prior to such a determination of unconstitutionality,
is an operative fact and may have consequences which cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it operates. To recount,
insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-
enactment authority in vital areas of budget execution, the system has violated the principle of
separation of powers; insofar as it has conferred unto legislators the power of appropriation by
giving them personal, discretionary funds from which they are able to fund specific projects
which they themselves determine, it has similarly violated the principle of non-delegability of
legislative power ; insofar as it has created a system of budgeting wherein items are not
textualized into the appropriations bill, it has flouted the prescribed procedure of presentment
and, in the process, denied the President the power to veto items ; insofar as it has diluted the
effectiveness of congressional oversight by giving legislators a stake in the affairs of budget
execution, an aspect of governance which they may be called to monitor and scrutinize, the
system has equally impaired public accountability ; insofar as it has authorized legislators, who
are national officers, to intervene in affairs of purely local nature, despite the existence of
capable local institutions, it has likewise subverted genuine local autonomy ; and again, insofar
as it has conferred to the President the power to appropriate funds intended by law for energy-
related purposes only to other purposes he may deem fit as well as other public funds under the
broad classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional
methods and mechanisms the Court has herein pointed out should never again be adopted in
any system of governance, by any name or form, by any semblance or similarity, by any
influence or effect. Disconcerting as it is to think that a system so constitutionally unsound has
monumentally endured, the Court urges the people and its co-stewards in government to look
forward with the optimism of change and the awareness of the past. At a time of great civic
unrest and vociferous public debate, the Court fervently hopes that its Decision today, while it
may not purge all the wrongs of society nor bring back what has been lost, guides this nation to
the path forged by the Constitution so that no one may heretofore detract from its cause nor
stray from its course. After all, this is the Court‘s bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire
2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws,
such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
authorize/d legislators – whether individually or collectively organized into committees – to
intervene, assume or participate in any of the various post-enactment stages of the budget
execution, such as but not limited to the areas of project identification, modification and revision
of project identification, fund release and/or fund realignment, unrelated to the power of
congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel
Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions,
which confer/red personal, lump-sum allocations to legislators from which they are able to fund
specific projects which they themselves determine; (d) all informal practices of similar import
and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to
lack or excess of jurisdiction; and (e) the phrases (1) "and for such other purposes as may be
hereafter directed by the President" under Section 8 of Presidential Decree No. 910 and (2) "to
finance the priority infrastructure development projects" under Section 12 of Presidential Decree
No. 1869, as amended by Presidential Decree No. 1993, for both failing the sufficient standard
test in violation of the principle of non-delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to
be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for
the year 2013, as well as for all previous years, and the funds sourced from (1) the Malampaya
Funds under the phrase "and for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential Social
Fund under the phrase "to finance the priority infrastructure development projects" pursuant to
Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993,
which are, at the time this Decision is promulgated, not covered by Notice of Cash Allocations
(NCAs) but only by Special Allotment Release Orders (SAROs), whether obligated or not, are
hereby ENJOINED. The remaining PDAF funds covered by this permanent injunction shall not
be disbursed/released but instead reverted to the unappropriated surplus of the general fund,
while the funds under the Malampaya Funds and the Presidential Social Fund shall remain
therein to be utilized for their respective special purposes not otherwise declared as
unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby
DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of
Budget and Management be ordered to provide the public and the Commission on Audit
complete lists/schedules or detailed reports related to the availments and utilization of the funds
subject of these cases. Petitioners‘ access to official documents already available and of public
record which are related to these funds must, however, not be prohibited but merely subjected
to the custodian‘s reasonable regulations or any valid statutory prohibition on the same. This
denial is without prejudice to a proper mandamus case which they or the Commission on Audit
may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these
cases in the budgetary deliberations of Congress as the same is a matter left to the prerogative
of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the
bounds of reasonable dispatch, investigate and accordingly prosecute all government officials
and/or private individuals for possible criminal offenses related to the irregular, improper and/or
unlawful disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice
 4. Abakada Guro Party-list v. Purisima, G.R. No. 166715, August 14, 2008

G.R. No. 166715             August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS) 1 OFFICERS/MEMBERS SAMSON S.

ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and
EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and
HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of
Customs, respondents.

DECISION

CORONA, J.:

This petition for prohibition 1 seeks to prevent respondents from implementing and enforcing
Republic Act (RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to
encourage BIR and BOC officials and employees to exceed their revenue targets by providing a
system of rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund)
and a Revenue Performance Evaluation Board (Board). 3 It covers all officials and employees of
the BIR and the BOC with at least six months of service, regardless of employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue
targets for the year, as determined by the Development Budget and Coordinating Committee
(DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the BOC in
proportion to their contribution in the excess collection of the targeted amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director General of the National Economic
Development Authority (NEDA) or his/her Deputy Director General, the Commissioners of the
BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution
and release of the Fund; (2) set criteria and procedures for removing from the service officials
and employees whose revenue collection falls short of the target; (3) terminate personnel in
accordance with the criteria adopted by the Board; (4) prescribe a system for performance
evaluation; (5) perform other functions, including the issuance of rules and regulations and (6)
submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335, 8 to be approved by a
Joint Congressional Oversight Committee created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of
RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards and
incentives, the law "transform[s] the officials and employees of the BIR and the BOC into
mercenaries and bounty hunters" as they will do their best only in consideration of such
rewards. Thus, the system of rewards and incentives invites corruption and undermines the
constitutionally mandated duty of these officials and employees to serve the people with utmost
responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to
officials and employees of the BIR and the BOC violates the constitutional guarantee of equal
protection. There is no valid basis for classification or distinction as to why such a system
should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to
the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA
9335 provides that BIR and BOC officials may be dismissed from the service if their revenue
collections fall short of the target by at least 7.5%, the law does not, however, fix the revenue
targets to be achieved. Instead, the fixing of revenue targets has been delegated to the
President without sufficient standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground that
it violates the doctrine of separation of powers. While the legislative function is deemed
accomplished and completed upon the enactment and approval of the law, the creation of the
congressional oversight committee permits legislative participation in the implementation and
enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the petition
for being premature as there is no actual case or controversy yet. Petitioners have not asserted
any right or claim that will necessitate the exercise of this Court’s jurisdiction. Nevertheless,
respondents acknowledge that public policy requires the resolution of the constitutional issues
involved in this case. They assert that the allegation that the reward system will breed
mercenaries is mere speculation and does not suffice to invalidate the law. Seen in conjunction
with the declared objective of RA 9335, the law validly classifies the BIR and the BOC because
the functions they perform are distinct from those of the other government agencies and
instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive
in the implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It ensures the
fulfillment of the legislative policy and serves as a check to any over-accumulation of power on
the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that
petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335,
except as shall hereafter be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is,
the question must be ripe for adjudication. And a constitutional question is ripe for adjudication
when the governmental act being challenged has a direct adverse effect on the individual
challenging it.11 Thus, to be ripe for judicial adjudication, the petitioner must show a personal
stake in the outcome of the case or an injury to himself that can be redressed by a favorable
decision of the Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy
by the mere enactment of the law even without any further overt act, 13 petitioners fail either to
assert any specific and concrete legal claim or to demonstrate any direct adverse effect of the
law on them. They are unable to show a personal stake in the outcome of this case or an injury
to themselves. On this account, their petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary
to settle the dispute.14

Accountability of
Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal gain
but for the benefit of the public for whom he holds it in trust. By demanding accountability and
service with responsibility, integrity, loyalty, efficiency, patriotism and justice, all government
officials and employees have the duty to be responsive to the needs of the people they are
called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This
presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335
operates on the basis thereof and reinforces it by providing a system of rewards and sanctions
for the purpose of encouraging the officials and employees of the BIR and the BOC to exceed
their revenue targets and optimize their revenue-generation capability and collection. 15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be
overturned by mere conjecture or denied in advance (as petitioners would have the Court do)
specially in this case where it is an underlying principle to advance a declared public policy.

Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and
employees into "bounty hunters and mercenaries" is not only without any factual and legal
basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful
and equivocal one.16 To invalidate RA 9335 based on petitioners’ baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the executive which
approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for
exemplary and exceptional performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept of public accountability. In fact, it
recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of
deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers
of the customs as well as other parties an amount not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the
U.S. Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their
zeal and industry in detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when,
as a consequence of their zeal in the enforcement of tax and customs laws, they exceed their
revenue targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not
be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of
the irregular performance of official duties. One of these precautionary measures is embodied in
Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or
who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to
exercise extraordinary diligence in the performance of their duties shall be held liable for
any loss or injury suffered by any business establishment or taxpayer as a result of such
violation, negligence, abuse, malfeasance, misfeasance or failure to exercise
extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions
and among persons similarly situated; it is equality among equals, not similarity of treatment of
persons who are classified based on substantial differences in relation to the object to be
accomplished.19 When things or persons are different in fact or circumstance, they may be
treated in law differently. In Victoriano v. Elizalde Rope Workers’ Union,20 this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement,
in order to avoid the constitutional prohibition against inequality, that every man, woman
and child should be affected alike by a statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as such, but on persons according to
the circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in
 law as though they were the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit legislation which
is limited either in the object to which it is directed or by the territory within which it
is to operate.

The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences, that
it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of
discretion. It is not necessary that the classification be based on scientific or marked
differences of things or in their relation. Neither is it necessary that the classification be
made with mathematical nicety. Hence, legislative classification may in many cases
properly rest on narrow distinctions, for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and legislation is addressed to
evils as they may appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a
reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its
expressed public policy is the optimization of the revenue-generation capability and collection of
the BIR and the BOC. 23 Since the subject of the law is the revenue- generation capability and
collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should
logically pertain to the said agencies. Moreover, the law concerns only the BIR and the BOC
because they have the common distinct primary function of generating revenues for the national
government through the collection of taxes, customs duties, fees and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall
be headed by and subject to the supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues
collected;

(2) Exercise duly delegated police powers for the proper performance of its functions
and duties;
 (3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24

xxx       xxx       xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and
penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all
ports of entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels
and aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25

xxx       xxx       xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special
function of being the instrumentalities through which the State exercises one of its great
inherent functions – taxation. Indubitably, such substantial distinction is germane and intimately
related to the purpose of the law. Hence, the classification and treatment accorded to the BIR
and the BOC under RA 9335 fully satisfy the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test and
(2) the sufficient standard test. A law is complete when it sets forth therein the policy to be
executed, carried out or implemented by the delegate.26 It lays down a sufficient standard when
it provides adequate guidelines or limitations in the law to map out the boundaries of the
delegate’s authority and prevent the delegation from running riot. 27 To be sufficient, the standard
must specify the limits of the delegate’s authority, announce the legislative policy and identify
the conditions under which it is to be implemented.28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue
targets and the implementing agencies in carrying out the provisions of the law. Section 2 spells
out the policy of the law:

SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-
generation capability and collection of the Bureau of Internal Revenue (BIR) and the
Bureau of Customs (BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue Performance Evaluation
Board in the above agencies for the purpose of encouraging their officials and
employees to exceed their revenue targets.

Section 4 "canalized within banks that keep it from overflowing" 29 the delegated power to the
President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR
and the BOC in excess of their respective revenue targets of the year, as
determined by the Development Budget and Coordinating Committee (DBCC), in
the following percentages:

Excess of Collection of the Percent (%) of the Excess Collection to

Excess the Revenue Targets Accrue to the Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the
remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the
year when the revenue collection target was exceeded and shall be released on the
same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected
of the BIR and the BOC for a given fiscal year as stated in the Budget of
Expenditures and Sources of Financing (BESF) submitted by the President to
Congress. The BIR and the BOC shall submit to the DBCC the distribution of the
agencies’ revenue targets as allocated among its revenue districts in the case of the
BIR, and the collection districts in the case of the BOC.

xxx       xxx       xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively
of the BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the
BESF submitted by the President to Congress.30 Thus, the determination of revenue targets
does not rest solely on the President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the
conditions under which officials and employees whose revenue collection falls short of the target
by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the
following powers and functions:

xxx       xxx       xxx

(b) To set the criteria and procedures for removing from service officials and
employees whose revenue collection falls short of the target by at least seven and
a half percent (7.5%), with due consideration of all relevant factors affecting the
level of collection as provided in the rules and regulations promulgated under this
Act, subject to civil service laws, rules and regulations and compliance with
substantive and procedural due process: Provided, That the following exemptions
shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two

years in operation, as has no historical record of collection performance that can
be used as basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in

the middle of the period under consideration unless the transfer was due to
nonperformance of revenue targets or potential nonperformance of revenue
targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from
economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be
considered only after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided,
further, That the application of the criteria for the separation of an official or
employee from service under this Act shall be without prejudice to the application
of other relevant laws on accountability of public officers and employees, such as
the Code of Conduct and Ethical Standards of Public Officers and Employees and
the Anti-Graft and Corrupt Practices Act;

xxx       xxx       xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR
and the BOC. The guarantee of security of tenure only means that an employee cannot be
dismissed from the service for causes other than those provided by law and only after due
process is accorded the employee. 31 In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with
due consideration of all relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of official duties, a ground for
disciplinary action under civil service laws. 32 The action for removal is also subject to civil
service laws, rules and regulations and compliance with substantive and procedural due
process.
At any rate, this Court has recognized the following as sufficient standards: "public interest,"
"justice and equity," "public convenience and welfare" and "simplicity, economy and
welfare."33 In this case, the declared policy of optimization of the revenue-generation capability
and collection of the BIR and the BOC is infused with public interest.

Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint

Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate
shall be appointed by the Senate President, with at least two senators representing the
minority. The Members from the House of Representatives shall be appointed by the
Speaker with at least two members representing the minority. After the Oversight
Committee will have approved the implementing rules and regulations (IRR) it shall
thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of
approving the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA,
BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it
became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the
executive function of implementing and enforcing the law may be considered moot and
academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of
the constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or
other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by

Congress to enhance its understanding of and influence over
the implementation of legislation it has enacted. Clearly, oversight concerns post-
enactment measures undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether agencies are
properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess executive
conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power
itself and integral to the checks and balances inherent in a democratic system of
government. x x x x x x x x x

Over the years, Congress has invoked its oversight power with increased frequency to
check the perceived "exponential accumulation of power" by the executive branch. By
the beginning of the 20th century, Congress has delegated an enormous amount of
legislative authority to the executive branch and the administrative agencies. Congress,
thus, uses its oversight power to make sure that the administrative agencies perform
their functions within the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be
divided into three categories, namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to

administrative operations. Its primary purpose is to determine economy and
efficiency of the operation of government activities. In the exercise of legislative
scrutiny, Congress may request information and report from the other branches
of government. It can give recommendations or pass resolutions for
consideration of the agency involved.

xxx       xxx       xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the

facts that are readily available, congressional investigation involves a more
intense digging of facts. The power of Congress to conduct investigation is
recognized by the 1987 Constitution under section 21, Article VI, xxx       xxx      
xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power
is thru legislative supervision. "Supervision" connotes a continuing and informed
awareness on the part of a congressional committee regarding executive operations in a
given administrative area. While both congressional scrutiny and investigation involve
inquiry into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of
delegated law-making authority, and permits Congress to retain part of that delegated
authority.

Congress exercises supervision over the executive agencies through its veto power. It
typically utilizes veto provisions when granting the President or an executive agency the
power to promulgate regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to Congress, which retains
a "right" to approve or disapprove any regulation before it takes effect. Such legislative
veto provisions usually provide that a proposed regulation will become a law after the
expiration of a certain period of time, only if Congress does not affirmatively disapprove
of the regulation in the meantime. Less frequently, the statute provides that a proposed
regulation will become law if Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power
between the legislative and the executive branches of government as it offers lawmakers
a way to delegate vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power without having to pass
new legislation or to repeal existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of
modern government have often led Congress-whether by actual or perceived
necessity- to legislate by declaring broad policy goals and general statutory
standards, leaving the choice of policy options to the discretion of an executive
officer. Congress articulates legislative aims, but leaves their implementation to
the judgment of parties who may or may not have participated in or agreed with
the development of those aims. Consequently, absent safeguards, in many
instances the reverse of our constitutional scheme could be effected: Congress
proposes, the Executive disposes. One safeguard, of course, is the legislative
power to enact new legislation or to change existing law. But without some
means of overseeing post enactment activities of the executive branch, Congress
would be unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention is
appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the

executive prerogatives. They urge that any post-enactment measures undertaken
by the legislative branch should be limited to scrutiny and investigation; any
measure beyond that would undermine the separation of powers guaranteed by
the Constitution. They contend that legislative veto constitutes an impermissible
evasion of the President’s veto authority and intrusion into the powers vested in the
executive or judicial branches of government. Proponents counter that legislative veto
enhances separation of powers as it prevents the executive branch and independent
agencies from accumulating too much power. They submit that reporting requirements
and congressional committee investigations allow Congress to scrutinize only the
exercise of delegated law-making authority. They do not allow Congress to review
executive proposals before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the approval or disapproval of
"subordinate law" or those enacted by the executive branch pursuant to a delegation of
authority by Congress. They further argue that legislative veto "is a necessary response
by Congress to the accretion of policy control by forces outside its chambers." In an era
of delegated authority, they point out that legislative veto "is the most efficient means
Congress has yet devised to retain control over the evolution and implementation of its
policy as declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court

resolved the validity of legislative veto provisions. The case arose from the order of
the immigration judge suspending the deportation of Chadha pursuant to § 244(c)(1) of
the Immigration and Nationality Act. The United States House of Representatives
passed a resolution vetoing the suspension pursuant to § 244(c)(2) authorizing either
 House of Congress, by resolution, to invalidate the decision of the executive branch to
allow a particular deportable alien to remain in the United States. The immigration judge
reopened the deportation proceedings to implement the House order and the alien was
ordered deported. The Board of Immigration Appeals dismissed the alien’s appeal,
holding that it had no power to declare unconstitutional an act of Congress. The United
States Court of Appeals for Ninth Circuit held that the House was without constitutional
authority to order the alien’s deportation and that § 244(c)(2) violated the constitutional
doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the

Court shied away from the issue of separation of powers and instead held that the
provision violates the presentment clause and bicameralism. It held that the one-house
veto was essentially legislative in purpose and effect. As such, it is subject to the
procedures set out in Article I of the Constitution requiring the passage by a majority of
both Houses and presentment to the President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two
lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy
Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto provisions
although some of these provisions required the approval of both Houses of Congress
and thus met the bicameralism requirement of Article I. Indeed, some of these veto
provisions were not even exercised.35 (emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission on Elections,
the Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003)
creating a Joint Congressional Committee. The committee was tasked not only to monitor and
evaluate the implementation of the said law but also to review, revise, amend and approve the
IRR promulgated by the Commission on Elections. The Court held that these functions infringed
on the constitutional independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional per se,
meaning, it neither necessarily constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather, it is integral to
the checks and balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of power in the
executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative

sphere," the Constitution imposes two basic and related constraints on Congress. 37 It may not
vest itself, any of its committees or its members with either executive or judicial power. 38 And,
when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively
considered, procedures" specified under the Constitution,39 including the procedure for
enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:
 (1) scrutiny based primarily on Congress’ power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation40 and

(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to

present the proposed implementing rules and regulations of a law to Congress which, by itself
or through a committee formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the form of a congressional
oversight committee is in the form of an inward-turning delegation designed to attach a
congressional leash (other than through scrutiny and investigation) to an agency to which
Congress has by law initially delegated broad powers.43 It radically changes the design or
structure of the Constitution’s diagram of power as it entrusts to Congress a direct role in
enforcing, applying or implementing its own laws.44

Congress has two options when enacting legislation to define national policy within the broad
horizons of its legislative competence.45 It can itself formulate the details or it can assign to the
executive branch the responsibility for making necessary managerial decisions in conformity
with those standards.46 In the latter case, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. 47 Thus, what is left for the executive
branch or the concerned administrative agency when it formulates rules and regulations
implementing the law is to fill up details (supplementary rule-making) or ascertain facts
necessary to bring the law into actual operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement and interpret the

law which they are entrusted to enforce have the force of law and are entitled to respect. 49 Such
rules and regulations partake of the nature of a statute 50 and are just as binding as if they have
been written in the statute itself. As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set aside with finality in an appropriate
case by a competent court.51 Congress, in the guise of assuming the role of an overseer, may
not pass upon their legality by subjecting them to its stamp of approval without disturbing the
calculated balance of powers established by the Constitution. In exercising discretion to approve
or disapprove the IRR based on a determination of whether or not they conformed with the
provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested
in this Court by the Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by
Congress as a condition for their effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.52

Section 1, Article VI of the Constitution states:

 Section 1. The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the
extent reserved to the people by the provision on initiative and referendum. (emphasis
supplied)

Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in
Congress which consists of two chambers, the Senate and the House of Representatives. A
valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be
exercised neither solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative
veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he
shall veto it and return the same with his objections to the House where it originated,
which shall enter the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which it
shall likewise be reconsidered, and if approved by two-thirds of all the Members of that
House, it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the members voting for or against shall
be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise, it
shall become a law as if he had signed it. (emphasis supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the
absence of presentment to the President, no bill passed by Congress can become a law. In this
sense, law-making under the Constitution is a joint act of the Legislature and of the Executive.
Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect
without such presentment even if approved by both chambers of Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by both
Houses of Congress.54 Second, it must be presented to and approved by the President.55 As
summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the
procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate

except for some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its
referral by the Senate President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or
without amendments, sometimes after public hearings are first held thereon. If there are
other bills of the same nature or purpose, they may all be consolidated into one bill
under common authorship or as a committee bill.
 Once reported out, the bill shall be calendared for second reading. It is at this stage that
the bill is read in its entirety, scrutinized, debated upon and amended when desired. The
second reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the
members merely register their votes and explain them if they are allowed by the rules.
No further debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also
undergo the three readings. If there are differences between the versions approved by
the two chambers, a conference committee58 representing both Houses will draft a
compromise measure that if ratified by the Senate and the House of Representatives will
then be submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter
authenticated with the signatures of the Senate President, the Speaker, and the
Secretaries of their respective chambers…59

The President’s role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect
as law after the required publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted
pursuant to sufficient standards established in the said law, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes effective because it is only
upon effectivity of the statute that legal rights and obligations become available to those entitled
by the language of the statute. Subject to the indispensable requisite of publication under the
due process clause,61 the determination as to when a law takes effect is wholly the prerogative
of Congress.62 As such, it is only upon its effectivity that a law may be executed and the
executive branch acquires the duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited to approving or vetoing the
law.63

From the moment the law becomes effective, any provision of law that empowers Congress or
any of its members to play any role in the implementation or enforcement of the law violates the
principle of separation of powers and is thus unconstitutional. Under this principle, a provision
that requires Congress or its members to approve the implementing rules of a law after it has
already taken effect shall be unconstitutional, as is a provision that allows Congress or its
members to overturn any directive or ruling made by the members of the executive branch
charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional.

While there may be similar provisions of other laws that may be invalidated for failure to pass
this standard, the Court refrains from invalidating them wholesale but will do so at the proper
time when an appropriate case assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of
RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a

competent court, the remainder of this Act or any provision not affected by such
declaration of invalidity shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution,
while another part is valid, the valid portion, if separable from the invalid, may stand and
be enforced. The presence of a separability clause in a statute creates the presumption
that the legislature intended separability, rather than complete nullity of the statute. To
justify this result, the valid portion must be so far independent of the invalid portion that it
is fair to presume that the legislature would have enacted it by itself if it had supposed
that it could not constitutionally enact the other. Enough must remain to make a
complete, intelligible and valid statute, which carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or
compensations for each other, as to warrant a belief that the legislature intended them
as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute
dependent, conditional, or connected with one another, the legislature intended the
statute to be carried out as a whole and would not have enacted it if one part is void, in
which case if some parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach
any invalid provision from the other provisions so that the latter may continue in force and effect.
The valid portions can stand independently of the invalid section. Without Section 12, the
remaining provisions still constitute a complete, intelligible and valid law which carries out the
legislative intent to optimize the revenue-generation capability and collection of the BIR and the
BOC by providing for a system of rewards and sanctions through the Rewards and Incentives
Fund and a Revenue Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their purpose is
to enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were
published on May 30, 2006 in two newspapers of general circulation 66 and became effective 15
days thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and
effective even without the approval of the Joint Congressional Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating

a Joint Congressional Oversight Committee to approve the implementing rules and regulations
of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of
RA 9335, the rest of the provisions remain in force and effect.

SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de-Castro, Brion,
JJ., concur.
 5. Datu Michael Abas Kida v. Senate, G.R. No. 19671, October 18, 2011

G.R. No. 196271               February 28, 2012

DATU MICHAEL ABAS KIDA, in his personal capacity, and in representation of

MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC.,
HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL
JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and
BASSAM ALUH SAUPI, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE,
HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION
ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR.,
Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget,
and ROBERTO TAN, Treasurer of the Philippines, Respondents.

x-----------------------x

G.R. No. 196305

BASARI D. MAPUPUNO, Petitioner,
vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections,
FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and
Management, PAQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN
PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his
capacity as Speaker of the House of Representatives, Respondents.

x-----------------------x

G.R. No. 197221

REP. EDCEL C. LAGMAN, Petitioner,

vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the
COMMISSION ON ELECTIONS, Respondents.

x-----------------------x

G.R. No. 197280

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO
PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners,
vs.
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR.,
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON.
FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and
Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the
Philippines, Respondents.

x-----------------------x

G.R. No. 197282

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

x-----------------------x

G.R. No. 197392

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA,
JR., Respondents.

x-----------------------x

G.R. No. 197454

JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE COMMISSION ON
ELECTIONS, Respondents.

MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.

RESOLUTION

BRION, J.:

We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al.
in G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel Lagman in
G.R. No. 197221; (c) the ex abundante ad cautelam motion for reconsideration filed by
petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by
petitioner Atty. Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by
petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido Demokratiko Pilipino
Lakas ng Bayan in G.R. No. 197280; (f) the manifestation and motion filed by petitioners
Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the very urgent motion to issue
clarificatory resolution that the temporary restraining order (TRO) is still existing and effective.

These motions assail our Decision dated October 18, 2011, where we upheld the
constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of
synchronization, RA No. 10153 postponed the regional elections in the Autonomous Region in
Muslim Mindanao (ARMM) (which were scheduled to be held on the second Monday of August
2011) to the second Monday of May 2013 and recognized the President’s power to appoint
officers-in-charge (OICs) to temporarily assume these positions upon the expiration of the terms
of the elected officials.

The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:

I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM

ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION
GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM
ORDINARY LOCAL GOVERNMENT UNITS.

II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE
NOT IRREPEALABLE LAWS.

IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18,
ARTICLE X OF THE CONSTITUTION.

V. BALANCE OF INTERESTS TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.]1

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:

I. THE ELECTIVE REGIONAL EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM

CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL
GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE
(A) THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND
(B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS OWN APART FROM
TRADITIONAL LGUs.

II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR

AN ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND
LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE
APPOINTMENT BY THE PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT
MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR,
VICE GOVERNOR AND MEMBERS OF THE REGIONAL ASSEMBLY.

III. THE PRESIDENT’S APPOINTING POWER IS LIMITED TO APPOINTIVE

OFFICIALS AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE
PRESIDENT IS ONLY VESTED WITH SUPERVISORY POWERS OVER THE ARMM,
THEREBY NEGATING THE AWESOME POWER TO APPOINT AND REMOVE OICs
OCCUPYING ELECTIVE POSITIONS.
 IV. THE CONSTITUTION DOES NOT PROSCRIBE THE HOLDOVER OF ARMM
ELECTED OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR
SUCCESSORS.

V. THE RULING IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS

WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION
BUT PRESCRIBED BY THE ORGANIC ACTS.

VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾ VOTES IN THE HOUSE OF

REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE
AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT IMPOSE AN
IRREPEALABLE LAW.

VII. THE REQUIREMENT OF A PLEBISCITE FOR THE EFFECTIVITY OF A

SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT
UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION.

VIII. SYNCHRONIZATION OF THE ARMM ELECTION WITH THE NATIONAL AND

LOCAL ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.

IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND CONDUCT SPECIAL
ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING
COMELEC’S HOLDING OF SPECIAL ELECTIONS.2 (italics supplied)

The petitioner in G.R. No. 196305 further asserts that:

I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET A STATUTE, IT IS A

CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS
LANGUAGE.

THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR AND UNAMBIGUOUS:

THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE
OFFICIALS.

IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE FRAMERS, AND

APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE
SUPREME COURT MAY HAVE VIOLATED THE FOREMOST RULE IN STATUTORY
CONSTRUCTION.

xxxx

II. THE HONORABLE COURT SHOULD HAVE CONSIDERED THAT RA 9054, AN

ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.

xxxx
 III. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN
DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.

xxxx

IV. THE HONORABLE COURT MAY HAVE COMMITTED A SERIOUS ERROR IN

HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC
ACT.

xxxx

V. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN DECLARING THE

HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.

xxxx

VI. THE HONORABLE COURT COMMITTED A SERIOUS ERROR IN UPHOLDING

THE APPOINTMENT OF OFFICERS-IN-CHARGE.3 (italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:

A.

ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE

REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN
WITH, SUCH APPOINTMENT OF OIC REGIONAL OFFICIALS WILL CREATE A
FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL
GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO
A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH
PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY
CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF
OICs AS AN "INTERIM MEASURE".

B.

THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE

PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT
VIOLATIVE OF THE CONSTITUTION.

C.

THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE
CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN
ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE
SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE
FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH
SECTION 7, ARTICLE VII OF R.A. NO. 9054.
 D.

WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL

ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL
OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE
ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS.4

Finally, the petitioners in G.R. No. 197280 argue that:

a) the Constitutional mandate of synchronization does not apply to the ARMM elections;

b) RA No. 10153 negates the basic principle of republican democracy which, by

constitutional mandate, guides the governance of the Republic;

c) RA No. 10153 amends the Organic Act (RA No. 9054) and, thus, has to comply with
the 2/3 vote from the House of Representatives and the Senate, voting separately, and
be ratified in a plebiscite;

d) if the choice is between elective officials continuing to hold their offices even after
their terms are over and non-elective individuals getting into the vacant elective positions
by appointment as OICs, the holdover option is the better choice;

e) the President only has the power of supervision over autonomous regions, which
does not include the power to appoint OICs to take the place of ARMM elective officials;
and

f) it would be better to hold the ARMM elections separately from the national and local
elections as this will make it easier for the authorities to implement election laws.

In essence, the Court is asked to resolve the following questions:

(a) Does the Constitution mandate the synchronization of ARMM regional elections with
national and local elections?

(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply
with the supermajority vote and plebiscite requirements?

(c) Is the holdover provision in RA No. 9054 constitutional?

(d) Does the COMELEC have the power to call for special elections in ARMM?

(e) Does granting the President the power to appoint OICs violate the elective and
representative nature of ARMM regional legislative and executive offices?

(f) Does the appointment power granted to the President exceed the President’s
supervisory powers over autonomous regions?

The Court’s Ruling

We deny the motions for lack of merit.

Synchronization mandate includes ARMM elections

The Court was unanimous in holding that the Constitution mandates the synchronization of
national and local elections. While the Constitution does not expressly instruct Congress to
synchronize the national and local elections, the intention can be inferred from the following
provisions of the Transitory Provisions (Article XVIII) of the Constitution, which state:

Section 1. The first elections of Members of the Congress under this Constitution shall be held
on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be
simultaneous with the election of the Members of the Congress. It shall include the election of
all Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives, and the local officials first
elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of
votes shall serve for six years and the remaining twelve for three years.

xxxx

Section 5. The six-year term of the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to
noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be
held on the second Monday of May, 1992.

To fully appreciate the constitutional intent behind these provisions, we refer to the discussions
of the Constitutional Commission:

MR. MAAMBONG. For purposes of identification, I will now read a section which we will
temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE
OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be
recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the
action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will
read as follows: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL
SERVE UNTIL NOON OF JUNE 30, 1992."
I proposed this because of the proposed section of the Article on Transitory Provisions giving a
term to the incumbent President and Vice-President until 1992. Necessarily then, since the term
provided by the Commission for Members of the Lower House and for local officials is three
years, if there will be an election in 1987, the next election for said officers will be in 1990, and it
would be very close to 1992. We could never attain, subsequently, any synchronization of
election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and

consequently, we should not have a local election or an election for Members of the Lower
House in 1990 for them to be able to complete their term of three years each. And if we also
stagger the Senate, upon the first election it will result in an election in 1993 for the Senate
alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be
elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we
will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12
Senators and of course to the local officials and the Members of the Lower House. But,
definitely, thereafter we can never have an election once every three years, therefore defeating
the very purpose of the Commission when we adopted the term of six years for the President
and another six years for the Senators with the possibility of staggering with 12 to serve for six
years and 12 for three years insofar as the first Senators are concerned. And so my proposal
is the only way to effect the first synchronized election which would mean, necessarily, a
bonus of two years to the Members of the Lower House and a bonus of two years to the
local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who
proposed that in order to synchronize the elections every three years, which the body approved
— the first national and local officials to be elected in 1987 shall continue in office for five years,
the same thing the Honorable Davide is now proposing. That means they will all serve until
1992, assuming that the term of the President will be for six years and continue beginning in
1986. So from 1992, we will again have national, local and presidential elections. This time, in
1992, the President shall have a term until 1998 and the first 12 Senators will serve until
1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992
will serve until 1995. From then on, we shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize
our elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

xxxx

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent
President and Vice-President in 1992.
MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the
Senators and local officials with the election of the President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption
that the provision of the Transitory Provisions on the term of the incumbent President and Vice-
President would really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the
President up to the municipal officials.5 (emphases and underscoring ours)

The framers of the Constitution could not have expressed their objective more clearly – there
was to be a single election in 1992 for all elective officials – from the President down to the
municipal officials. Significantly, the framers were even willing to temporarily lengthen or shorten
the terms of elective officials in order to meet this objective, highlighting the importance of this
constitutional mandate.

We came to the same conclusion in Osmeña v. Commission on Elections, 6 where we

unequivocally stated that "the Constitution has mandated synchronized national and local
elections."7 Despite the length and verbosity of their motions, the petitioners have failed to
convince us to deviate from this established ruling.

Neither do we find any merit in the petitioners’ contention that the ARMM elections are not
covered by the constitutional mandate of synchronization because the ARMM elections were
not specifically mentioned in the above-quoted Transitory Provisions of the Constitution.

That the ARMM elections were not expressly mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be interpreted to mean that the ARMM elections are not
covered by the constitutional mandate of synchronization. We have to consider that the ARMM,
as we now know it, had not yet been officially organized at the time the Constitution was
enacted and ratified by the people. Keeping in mind that a constitution is not intended to provide
merely for the exigencies of a few years but is to endure through generations for as long as it
remains unaltered by the people as ultimate sovereign, a constitution should be construed in the
light of what actually is a continuing instrument to govern not only the present but also the
unfolding events of the indefinite future. Although the principles embodied in a constitution
remain fixed and unchanged from the time of its adoption, a constitution must be construed as a
dynamic process intended to stand for a great length of time, to be progressive and not static.8

To reiterate, Article X of the Constitution, entitled "Local Government," clearly shows the
intention of the Constitution to classify autonomous regions, such as the ARMM, as local
governments. We refer to Section 1 of this Article, which provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim
Mindanao and the Cordilleras as hereinafter provided.
The inclusion of autonomous regions in the enumeration of political subdivisions of the State
under the heading "Local Government" indicates quite clearly the constitutional intent to
consider autonomous regions as one of the forms of local governments.

That the Constitution mentions only the "national government" and the "local governments," and
does not make a distinction between the "local government" and the "regional government," is
particularly revealing, betraying as it does the intention of the framers of the Constitution to
consider the autonomous regions not as separate forms of government, but as political units
which, while having more powers and attributes than other local government units, still remain
under the category of local governments. Since autonomous regions are classified as local
governments, it follows that elections held in autonomous regions are also considered as local
elections.

The petitioners further argue that even assuming that the Constitution mandates the
synchronization of elections, the ARMM elections are not covered by this mandate since they
are regional elections and not local elections.

In construing provisions of the Constitution, the first rule is verba legis, "that is, wherever
possible, the words used in the Constitution must be given their ordinary meaning except where
technical terms are employed."9 Applying this principle to determine the scope of "local
elections," we refer to the meaning of the word "local," as understood in its ordinary sense. As
defined in Webster’s Third New International Dictionary Unabridged, "local" refers to something
"that primarily serves the needs of a particular limited district, often a community or minor
political subdivision." Obviously, the ARMM elections, which are held within the confines of the
autonomous region of Muslim Mindanao, fall within this definition.

To be sure, the fact that the ARMM possesses more powers than other provinces, cities, or
municipalities is not enough reason to treat the ARMM regional elections differently from the
other local elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does not
distinguish, we must not distinguish.10

RA No. 10153 does not amend RA No. 9054

The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM
elections, amend RA No. 9054.

We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM
elections;11 it does not provide the date for the succeeding regular ARMM elections. In providing
for the date of the regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not
amend RA No. 9054 since these laws do not change or revise any provision in RA No. 9054. In
fixing the date of the ARMM elections subsequent to the first election, RA No. 9333 and RA No.
10153 merely filled the gap left in RA No. 9054.

We reiterate our previous observations:

This view – that Congress thought it best to leave the determination of the date of succeeding
ARMM elections to legislative discretion – finds support in ARMM’s recent history.
To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The
First Organic Act – RA No. 6734 – not only did not fix the date of the subsequent elections; it did
not even fix the specific date of the first ARMM elections, leaving the date to be fixed in another
legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753,
and RA No. 9012 were all enacted by Congress to fix the dates of the ARMM elections. Since
these laws did not change or modify any part or provision of RA No. 6734, they were not
amendments to this latter law. Consequently, there was no need to submit them to any
plebiscite for ratification.

The Second Organic Act – RA No. 9054 – which lapsed into law on March 31, 2001, provided
that the first elections would be held on the second Monday of September 2001. Thereafter,
Congress passed RA No. 9140 to reset the date of the ARMM elections. Significantly, while RA
No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No.
9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among
the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress
passed RA No. 9333, which further reset the date of the ARMM regional elections. Again, this
law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix
the date of the subsequent ARMM elections as separate and distinct from the Organic Acts.
Congress only acted consistently with this intent when it passed RA No. 10153 without requiring
compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII
of RA No. 9054.12 (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as
regards the date of the subsequent ARMM elections. In his estimation, it can be implied from
the provisions of RA No. 9054 that the succeeding elections are to be held three years after the
date of the first ARMM regional elections.

We find this an erroneous assertion. Well-settled is the rule that the court may not, in the guise
of interpretation, enlarge the scope of a statute and include therein situations not provided nor
intended by the lawmakers. An omission at the time of enactment, whether careless or
calculated, cannot be judicially supplied however later wisdom may recommend the
inclusion.13 Courts are not authorized to insert into the law what they think should be in it or to
supply what they think the legislature would have supplied if its attention had been called to the
omission.14 Providing for lapses within the law falls within the exclusive domain of the legislature,
and courts, no matter how well-meaning, have no authority to intrude into this clearly delineated
space.

Since RA No. 10153 does not amend, but merely fills in the gap in RA No. 9054, there is no
need for RA No. 10153 to comply with the amendment requirements set forth in Article XVII of
RA No. 9054.

Supermajority vote requirement makes RA No. 9054 an irrepealable law

Even assuming that RA No. 10153 amends RA No. 9054, however, we have already
established that the supermajority vote requirement set forth in Section 1, Article XVII of RA No.
905415 is unconstitutional for violating the principle that Congress cannot pass irrepealable laws.
The power of the legislature to make laws includes the power to amend and repeal these laws.
Where the legislature, by its own act, attempts to limit its power to amend or repeal laws, the
Court has the duty to strike down such act for interfering with the plenary powers of Congress.
As we explained in Duarte v. Dade:16

A state legislature has a plenary law-making power over all subjects, whether pertaining to
persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old,
unless prohibited expressly or by implication by the federal constitution or limited or restrained
by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so
restrained. Every legislative body may modify or abolish the acts passed by itself or its
predecessors. This power of repeal may be exercised at the same session at which the original
act was passed; and even while a bill is in its progress and before it becomes a law. This
legislature cannot bind a future legislature to a particular mode of repeal. It cannot
declare in advance the intent of subsequent legislatures or the effect of subsequent
legislation upon existing statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve bills by a mere
majority vote, provided there is quorum. 17 In requiring all laws which amend RA No. 9054 to
comply with a higher voting requirement than the Constitution provides (2/3 vote), Congress,
which enacted RA No. 9054, clearly violated the very principle which we sought to establish in
Duarte. To reiterate, the act of one legislature is not binding upon, and cannot tie the hands of,
future legislatures.18

We also highlight an important point raised by Justice Antonio T. Carpio in his dissenting
opinion, where he stated: "Section 1, Article XVII of RA 9054 erects a high vote threshold for
each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond
the reach of Congress’ amendatory powers. One Congress cannot limit or reduce the plenary
legislative power of succeeding Congresses by requiring a higher vote threshold than what the
Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher
vote threshold because Congress has no power, by ordinary legislation, to amend the
Constitution."19

Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners’ contention that the plebiscite requirement 20 applies to
all amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite
requirement set forth in the Constitution.

Section 18, Article X of the Constitution provides that "[t]he creation of the autonomous region
shall be effective when approved by majority of the votes cast by the constituent units in a
plebiscite called for the purpose[.]" We interpreted this to mean that only amendments to, or
revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions
– i.e., those aspects specifically mentioned in the Constitution which Congress must provide for
in the Organic Act21 – require ratification through a plebiscite. We stand by this interpretation.

The petitioners argue that to require all amendments to RA No. 9054 to comply with the
plebiscite requirement is to recognize that sovereignty resides primarily in the people.

While we agree with the petitioners’ underlying premise that sovereignty ultimately resides with
the people, we disagree that this legal reality necessitates compliance with the plebiscite
requirement for all amendments to RA No. 9054. For if we were to go by the petitioners’
interpretation of Section 18, Article X of the Constitution that all amendments to the Organic Act
have to undergo the plebiscite requirement before becoming effective, this would lead to
impractical and illogical results – hampering the ARMM’s progress by impeding Congress from
enacting laws that timely address problems as they arise in the region, as well as weighing
down the ARMM government with the costs that unavoidably follow the holding of a plebiscite.

Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153, in giving the President
the power to appoint OICs to take the place of the elective officials of the ARMM, creates a
fundamental change in the basic structure of the government, and thus requires compliance
with the plebiscite requirement embodied in RA No. 9054.

Again, we disagree.

The pertinent provision in this regard is Section 3 of RA No. 10153, which reads:

Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge

for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional
Legislative Assembly who shall perform the functions pertaining to the said offices until the
officials duly elected in the May 2013 elections shall have qualified and assumed office.

We cannot see how the above-quoted provision has changed the basic structure of the ARMM
regional government. On the contrary, this provision clearly preserves the basic structure of the
ARMM regional government when it recognizes the offices of the ARMM regional government
and directs the OICs who shall temporarily assume these offices to "perform the functions
pertaining to the said offices."

Unconstitutionality of the holdover provision

The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA No.
9054, which allows the regional officials to remain in their positions in a holdover capacity. The
petitioners essentially argue that the ARMM regional officials should be allowed to remain in
their respective positions until the May 2013 elections since there is no specific provision in the
Constitution which prohibits regional elective officials from performing their duties in a holdover
capacity.

The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. [emphases ours]

On the other hand, Section 7(1), Article VII of RA No. 9054 provides:

Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of Office. The terms of
office of the Regional Governor, Regional Vice Governor and members of the Regional
Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of
September next following the day of the election and shall end at noon of the same date three
(3) years thereafter. The incumbent elective officials of the autonomous region shall continue in
effect until their successors are elected and qualified.
The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers
of the Constitution to categorically set a limitation on the period within which all elective local
officials can occupy their offices. We have already established that elective ARMM officials are
also local officials; they are, thus, bound by the three-year term limit prescribed by the
Constitution. It, therefore, becomes irrelevant that the Constitution does not expressly prohibit
elective officials from acting in a holdover capacity. Short of amending the Constitution,
Congress has no authority to extend the three-year term limit by inserting a holdover provision
in RA No. 9054. Thus, the term of three years for local officials should stay at three (3) years, as
fixed by the Constitution, and cannot be extended by holdover by Congress.

Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws.
One significant difference between the present case and these past cases 22 is that while these
past cases all refer to elective barangay or sangguniang kabataan officials whose terms of office
are not explicitly provided for in the Constitution, the present case refers to local elective officials
- the ARMM Governor, the ARMM Vice Governor, and the members of the Regional Legislative
Assembly - whose terms fall within the three-year term limit set by Section 8, Article X of the
Constitution.

Even assuming that a holdover is constitutionally permissible, and there had been statutory
basis for it (namely Section 7, Article VII of RA No. 9054), the rule of holdover can only apply as
an available option where no express or implied legislative intent to the contrary exists; it cannot
apply where such contrary intent is evident.23

Congress, in passing RA No. 10153 and removing the holdover option, has made it clear that it
wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the exercise of its
plenary legislative powers, has clearly acted within its discretion when it deleted the holdover
option, and this Court has no authority to question the wisdom of this decision, absent any
evidence of unconstitutionality or grave abuse of discretion. It is for the legislature and the
executive, and not this Court, to decide how to fill the vacancies in the ARMM regional
government which arise from the legislature complying with the constitutional mandate of
synchronization.

COMELEC has no authority to hold special elections

Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is
sufficiently empowered to set the date of special elections in the ARMM. To recall, the
Constitution has merely empowered the COMELEC to enforce and administer all laws and
regulations relative to the conduct of an election.24 Although the legislature, under the Omnibus
Election Code (Batas Pambansa Bilang [BP] 881), has granted the COMELEC the power to
postpone elections to another date, this power is confined to the specific terms and
circumstances provided for in the law. Specifically, this power falls within the narrow confines of
the following provisions:

Section 5. Postponement of election. - When for any serious cause such

as violence, terrorism, loss or destruction of election paraphernalia or records, force
majeure, and other analogous causes of such a nature that the holding of a free, orderly and
honest election should become impossible in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party, and after due notice and hearing,
whereby all interested parties are afforded equal opportunity to be heard, shall postpone the
election therein to a date which should be reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause for such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud,

or other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after
the voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any interested party and after due notice
and hearing, call for the holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days after the cessation
of the cause of such postponement or suspension of the election or failure to elect. [emphases
and underscoring ours]

As we have previously observed in our assailed decision, both Section 5 and Section 6 of BP
881 address instances where elections have already been scheduled to take place but do not
occur or had to be suspended because of unexpected and unforeseen circumstances, such as
violence, fraud, terrorism, and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional
mandate of synchronization of national and local elections. Obviously, this does not fall under
any of the circumstances contemplated by Section 5 or Section 6 of BP 881.

More importantly, RA No. 10153 has already fixed the date for the next ARMM elections and the
COMELEC has no authority to set a different election date.

Even assuming that the COMELEC has the authority to hold special elections, and this Court
can compel the COMELEC to do so, there is still the problem of having to shorten the terms of
the newly elected officials in order to synchronize the ARMM elections with the May 2013
national and local elections. Obviously, neither the Court nor the COMELEC has the authority to
do this, amounting as it does to an amendment of Section 8, Article X of the Constitution, which
limits the term of local officials to three years.

President’s authority to appoint OICs

The petitioner in G.R. No. 197221 argues that the President’s power to appoint pertains only to
appointive positions and cannot extend to positions held by elective officials.

The power to appoint has traditionally been recognized as executive in nature. 25 Section 16,
Article VII of the Constitution describes in broad strokes the extent of this power, thus:

Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments, agencies, commissions, or boards.
[emphasis ours]

The 1935 Constitution contained a provision similar to the one quoted above. Section 10(3),
Article VII of the 1935 Constitution provides:

(3) The President shall nominate and with the consent of the Commission on Appointments,
shall appoint the heads of the executive departments and bureaus, officers of the Army from the
rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other
officers of the Government whose appointments are not herein otherwise provided for, and
those whom he may be authorized by law to appoint; but the Congress may by law vest the
appointment of inferior officers, in the President alone, in the courts, or in the heads of
departments. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its counterpart in the
1935 Constitution is the sentence construction; while in the 1935 Constitution, the various
appointments the President can make are enumerated in a single sentence, the 1987
Constitution enumerates the various appointments the President is empowered to make and
divides the enumeration in two sentences. The change in style is significant; in providing for this
change, the framers of the 1987 Constitution clearly sought to make a distinction between the
first group of presidential appointments and the second group of presidential appointments, as
made evident in the following exchange:

MR. FOZ. Madame President x x x I propose to put a period (.) after "captain" and x x x delete
"and all" and substitute it with HE SHALL ALSO APPOINT ANY.

MR. REGALADO. Madam President, the Committee accepts the proposed amendment
because it makes it clear that those other officers mentioned therein do not have to be
confirmed by the Commission on Appointments.26

The first group of presidential appointments, specified as the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of the Armed Forces,
and other officers whose appointments are vested in the President by the Constitution, pertains
to the appointive officials who have to be confirmed by the Commission on Appointments.

The second group of officials the President can appoint are "all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint."27 The second sentence acts as the "catch-all provision" for the
President’s appointment power, in recognition of the fact that the power to appoint is essentially
executive in nature.28 The wide latitude given to the President to appoint is further demonstrated
by the recognition of the President’s power to appoint officials whose appointments are not
even provided for by law. In other words, where there are offices which have to be filled, but
the law does not provide the process for filling them, the Constitution recognizes the power of
the President to fill the office by appointment.

Any limitation on or qualification to the exercise of the President’s appointment power should be
strictly construed and must be clearly stated in order to be recognized. 29 Given that the
President derives his power to appoint OICs in the ARMM regional government from law, it falls
under the classification of presidential appointments covered by the second sentence of Section
16, Article VII of the Constitution; the President’s appointment power thus rests on clear
constitutional basis.

The petitioners also jointly assert that RA No. 10153, in granting the President the power to
appoint OICs in elective positions, violates Section 16, Article X of the Constitution, 30 which
merely grants the President the power of supervision over autonomous regions.

This is an overly restrictive interpretation of the President’s appointment power. There is no

incompatibility between the President’s power of supervision over local governments and
autonomous regions, and the power granted to the President, within the specific confines of RA
No. 10153, to appoint OICs.

The power of supervision is defined as "the power of a superior officer to see to it that lower
officers perform their functions in accordance with law." 31 This is distinguished from the power of
control or "the power of an officer to alter or modify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former for the
latter."32

The petitioners’ apprehension regarding the President’s alleged power of control over the OICs
is rooted in their belief that the President’s appointment power includes the power to remove
these officials at will. In this way, the petitioners foresee that the appointed OICs will be
beholden to the President, and act as representatives of the President and not of the people.

Section 3 of RA No. 10153 expressly contradicts the petitioners’ supposition. The provision
states:

Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge

for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional
Legislative Assembly who shall perform the functions pertaining to the said offices until the
officials duly elected in the May 2013 elections shall have qualified and assumed office.

The wording of the law is clear. Once the President has appointed the OICs for the offices of the
Governor, Vice Governor and members of the Regional Legislative Assembly, these same
officials will remain in office until they are replaced by the duly elected officials in the May 2013
elections. Nothing in this provision even hints that the President has the power to recall the
appointments he already made. Clearly, the petitioners’ fears in this regard are more apparent
than real.

RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within
the context it was enacted in. In the first place, Congress enacted RA No. 10153 primarily to
heed the constitutional mandate to synchronize the ARMM regional elections with the national
and local elections. To do this, Congress had to postpone the scheduled ARMM elections for
another date, leaving it with the problem of how to provide the ARMM with governance in
the intervening period, between the expiration of the term of those elected in August 2008 and
the assumption to office – twenty-one (21) months away – of those who will win in the
synchronized elections on May 13, 2013.
In our assailed Decision, we already identified the three possible solutions open to Congress to
address the problem created by synchronization – (a) allow the incumbent officials to remain in
office after the expiration of their terms in a holdover capacity; (b) call for special elections to be
held, and shorten the terms of those to be elected so the next ARMM regional elections can be
held on May 13, 2013; or (c) recognize that the President, in the exercise of his appointment
powers and in line with his power of supervision over the ARMM, can appoint interim OICs to
hold the vacated positions in the ARMM regional government upon the expiration of their terms.
We have already established the unconstitutionality of the first two options, leaving us to
consider the last available option.

In this way, RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment
that synchronization requires. Given the context, we have to judge RA No. 10153 by the
standard of reasonableness in responding to the challenges brought about by synchronizing the
ARMM elections with the national and local elections. In other words, "given the plain
unconstitutionality of providing for a holdover and the unavailability of constitutional
possibilities for lengthening or shortening the term of the elected ARMM officials, is the
choice of the President’s power to appoint – for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of the Constitution – an
unconstitutional or unreasonable choice for Congress to make?"33

We admit that synchronization will temporarily disrupt the election process in a local community,
the ARMM, as well as the community’s choice of leaders. However, we have to keep in mind
that the adoption of this measure is a matter of necessity in order to comply with a mandate that
the Constitution itself has set out for us. Moreover, the implementation of the provisions of RA
No. 10153 as an interim measure is comparable to the interim measures traditionally practiced
when, for instance, the President appoints officials holding elective offices upon the creation of
new local government units.

The grant to the President of the power to appoint OICs in place of the elective members of the
Regional Legislative Assembly is neither novel nor innovative. The power granted to the
President, via RA No. 10153, to appoint members of the Regional Legislative Assembly is
comparable to the power granted by BP 881 (the Omnibus Election Code) to the President to fill
any vacancy for any cause in the Regional Legislative Assembly (then called the Sangguniang
Pampook).34

Executive is not bound by the principle of judicial courtesy

The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21,
2011, question the propriety of the appointment by the President of Mujiv Hataman as acting
Governor and Bainon Karon as acting Vice Governor of the ARMM. They argue that since our
previous decision was based on a close vote of 8-7, and given the numerous motions for
reconsideration filed by the parties, the President, in recognition of the principle of judicial
courtesy, should have refrained from implementing our decision until we have ruled with finality
on this case.

We find the petitioners’ reasoning specious.

Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to
lower courts in instances where, even if there is no writ of preliminary injunction or TRO issued
by a higher court, it would be proper for a lower court to suspend its proceedings for practical
and ethical considerations.35 In other words, the principle of "judicial courtesy" applies where
there is a strong probability that the issues before the higher court would be rendered moot and
moribund as a result of the continuation of the proceedings in the lower court or court of
origin.36 Consequently, this principle cannot be applied to the President, who represents a co-
equal branch of government. To suggest otherwise would be to disregard the principle of
separation of powers, on which our whole system of government is founded upon.

Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and
cannot, have the effect of making our ruling any less effective or binding. Regardless of how
close the voting is, so long as there is concurrence of the majority of the members of the en
banc who actually took part in the deliberations of the case,37 a decision garnering only 8 votes
out of 15 members is still a decision of the Supreme Court en banc and must be respected as
such. The petitioners are, therefore, not in any position to speculate that, based on the voting,
"the probability exists that their motion for reconsideration may be granted."38

Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory
Resolution, argues that since motions for reconsideration were filed by the aggrieved parties
challenging our October 18, 2011 decision in the present case, the TRO we initially issued on
September 13, 2011 should remain subsisting and effective. He further argues that any attempt
by the Executive to implement our October 18, 2011 decision pending resolution of the motions
for reconsideration "borders on disrespect if not outright insolence"39 to this Court.

In support of this theory, the petitioner cites Samad v. COMELEC, 40 where the Court held that
while it had already issued a decision lifting the TRO, the lifting of the TRO is not yet final and
executory, and can also be the subject of a motion for reconsideration. The petitioner also cites
the minute resolution issued by the Court in Tolentino v. Secretary of Finance, 41 where the Court
reproached the Commissioner of the Bureau of Internal Revenue for manifesting its intention to
implement the decision of the Court, noting that the Court had not yet lifted the TRO previously
issued.42

We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion
for reconsideration filed to assail our decision. It does not follow, however, that the TRO remains
effective until after we have issued a final and executory decision, especially considering the
clear wording of the dispositive portion of our October 18, 2011 decision, which states:

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the

validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We
likewise LIFT the temporary restraining order we issued in our Resolution of September 13,
2011. No costs.43 (emphases ours)

In this regard, we note an important distinction between Tolentino and the present case. While it
may be true that Tolentino and the present case are similar in that, in both cases, the petitions
assailing the challenged laws were dismissed by the Court, an examination of the dispositive
portion of the decision in Tolentino reveals that the Court did not categorically lift the TRO. In
sharp contrast, in the present case, we expressly lifted the TRO issued on September 13,
2011.1âwphi1 There is, therefore, no legal impediment to prevent the President from exercising
his authority to appoint an acting ARMM Governor and Vice Governor as specifically provided
for in RA No. 10153.

Conclusion
As a final point, we wish to address the bleak picture that the petitioner in G.R. No. 197282
presents in his motion, that our Decision has virtually given the President the power and
authority to appoint 672,416 OICs in the event that the elections of barangay and Sangguniang
Kabataan officials are postponed or cancelled.

We find this speculation nothing short of fear-mongering.

This argument fails to take into consideration the unique factual and legal circumstances which
led to the enactment of RA No. 10153. RA No. 10153 was passed in order to synchronize the
ARMM elections with the national and local elections. In the course of synchronizing the ARMM
elections with the national and local elections, Congress had to grant the President the power to
appoint OICs in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM
elective officials is legally impermissible; and (b) Congress cannot call for special elections and
shorten the terms of elective local officials for less than three years.

Unlike local officials, as the Constitution does not prescribe a term limit for barangay and
Sangguniang Kabataan officials, there is no legal proscription which prevents these specific
government officials from continuing in a holdover capacity should some exigency require the
postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have
neither legal nor factual basis to stand on.

For the foregoing reasons, we deny the petitioners’ motions for reconsideration.

WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration
for lack of merit and UPHOLD the constitutionality of RA No. 10153.

SO ORDERED.

ARTURO D. BRION
Associate Justice