EN BANC [G.R. No. 162203.

April 14, 2004]

AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT ADHIKAIN PARA SA TAO, INC., petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), respondent. RESOLUTION TINGA, J.: For resolution is the Petition[1] for certiorari and mandamus fled by Aklat-Asosasyon Para Sa Kaunlaran Ng Lipunan At Adhikain Para Sa Tao, Inc. (Aklat) assailing the Commission on Elections (Comelec) Resolution[2] dated January 8, 2004, which dismissed its Petition[3] for re-qualifcation as a party-list organization, and the Resolution[4] dated February 13, 2004, which denied its Motion for Reconsideration.[5] Briefy, the facts are as follows: On November 20, 2003, Aklat fled a Petition for declaration of re-qualifcation as a party-list organization for purposes of the May 2004 elections. It alleged in its petition that it participated in the 2001 elections but was disqualifed by the Comelec as it was found not to have complied with the guidelines set by the Court in the case of Ang Bagong Bayani-OFW Labor Party v. Comelec (Bagong Bayani case)[6] for party-list organizations to qualify and participate as such in the party-list elections. Accordingly, Aklat re-organized itself in order that it will comply with the 8-point guidelines enunciated by the Supreme Court[7] in the said case. In its assailed Resolution dated January 8, 2004, the Comelec dismissed the petition stating that Aklat cannot be considered as an organization representing the marginalized and underrepresented groups as identifed under Section 5 of Republic Act No. 7941 (R.A. 7941). According to the Comelec, Aklats statement that it has re-organized itself does not cure this defect as there is nothing in the petition which will help us identify what particular marginalized and underrepresented group AKLAT is now representing.[8] Further, the Comelec held that AKLAT lumped all the sectoral groups imaginable under the classifcation of regular members just to convince us that it is now cured of its defect.[9] On January 15, 2004, Aklat fled a Motion for Reconsideration dated January 14, 2004, substantially averring that it has reorganized itself and taken the necessary steps to make it an organization of, by and for the marginalized and underrepresented groups of society, particularly the indigenous cultural communities and the youth. To this end, it has allegedly effected a fundamental change in its purposes as an organization, nature of its membership and focus of its programs.[10] The Comelec denied the motion in its questioned Resolution dated February 13, 2004, on three grounds, namely: the petition was fled beyond the deadline set by the Comelec in Resolution No. 6320 for registration of party-list organizations; the petition was not one for re-qualifcation as Aklat was never a registered party-list organization having failed to meet the eight-point guidelines set by the Court in the Bagong Bayani case; and that its decision not to extend the deadline for registration of party-list organizations is valid, the Comelec being in the best position to make such a determination.[11] In the instant Petition, Aklat asserts that under Section 5 of R.A. 7941, petitions for registration as a partylist organization may be fled not later than ninety (90) days before the elections. It therefore had until February 10, 2004, the ninetieth (90th) day before the elections on May 10, 2004, within which to fle its petition. Hence, its petition, which was fled on November 20, 2003, was fled within the allowed period. Section 5 of Resolution No. 6320[12] which requires the fling of such petitions not later than September 30, 2003, is null and void as it amends R.A. 7941. It further maintains that it has complied with the eight-point guidelines set in the Bagong Bayani case. Allegedly, Aklat has a total membership of over 4,000 persons who belong to the marginalized and underrepresented groups. It has established information and coordination centers throughout the country for the beneft and in representation of indigenous cultural communities, farm and factory workers including fsherfolk and the youth. Aklat also asserts that it is different from Asosasyon Para sa Kaunlaran ng Industria ng Aklat (A.K.L.A.T.) which was previously de-registered by the Comelec. Because of all these, Aklat contends that

the Comelec gravely abused its discretion when it denied its petition for re-qualifcation. The Offce of the Solicitor General (OSG) fled a Comment dated March 26, 2004, stating that the Comelec did not commit grave abuse of discretion in issuing the assailed Resolutions. According to the OSG, Resolution No. 6320 is not in confict with and is, in fact, germane to the purpose of R.A. 7941. It was within the scope of the authority granted to the Comelec that it issued Resolution No. 6320 setting the deadline for fling petitions for registration under the party-list system on September 30, 2003. In line with the purpose of R.A. 7941 to enable marginalized sectors to actively participate in legislation, the Comelec must be given suffcient time to evaluate all petitions for registration, at the same time allowing oppositions to be fled to the end that only those truly qualifed may be accredited under the party-list system. Besides, Republic Act No. 8436 [13] allows the Comelec to change the periods and dates prescribed by law for certain pre-election acts to ensure their accomplishment. The OSG further maintains that the petition for re-qualifcation failed to comply with the provisions of Resolution No. 6320. According to the OSG, the petition was not properly verifed there being no showing that Mr. Dominador Buhain, the signatory of the verifcation and certifcation of non-forum shopping, was duly authorized by Aklat to verify or cause the preparation and fling of the petition on its behalf. Moreover, Aklat was registered with the Securities and Exchange Commission only on October 20, 2003, a month before it fled its petition for re-qualifcation. Hence, it has not existed for a period of at least one (1) year prior to the fling of the petition as required by Section 6 of Resolution No. 6320. The OSG also points out that Aklat failed to support its petition with the documents required under Section 7 of Resolution No. 6320, namely: a list of its offcers and members particularly showing that the majority of its membership belongs to the marginalized and underrepresented sectors it seeks to represent, and a track record or summary showing that it represents and seeks to uplift the marginalized and underrepresented sectors of society. Moreover, the OSG notes that the incorporators and directors of Aklat are invariably known as pillars of the book publishing industry or authors. Hence, even as re-organized, Aklat remains to be an association of authors, book publishers, and publishing companies, rather than the organization of indigenous cultural communities, farm and factory workers, fsherfolk and youth it claims to be. For its part, the Comelec fled a Comment dated March 29, 2004, stating that the period of ninety (90) days prescribed in R.A. 7941 refers to the prohibitive period beyond which petitions for registration may no longer be fled. Furthermore, the documents submitted by Aklat do not prove that its members belong to the marginalized and underrepresented sectors of society. Aklats contention that Resolution No. 6320 is null and void as it amends and amplifes R.A. 7941 deserves scant consideration. R.A. 7941 provides: Sec. 5. Registration.Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by fling with the COMELEC not later than ninety (90) days before the election a petition verifed by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of offcers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor, peasant, fsherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals[Italics supplied.] By its wording, R.A. 7941 itself supports the Comelecs position that the period stated therein refers to the prohibitive period beyond which petitions for registration should no longer be fled nor entertained. Put elsewise, it is simply the minimum countback period which is not subject to reduction since it is prescribed by law, but it is susceptible of protraction on account of administrative necessities and other exigencies perceived by the poll body. Verily, the Comelec has the power to promulgate the necessary rules and regulations to enforce and administer election laws. This power includes the determination, within the parameters fxed by law, of appropriate periods for the accomplishment of certain pre-election acts like fling petitions for registration under the party-list system. This is exactly what the Comelec did when it issued its Resolution No. 6320 declaring September 30, 2003, as the deadline for fling petitions for registration under the party-list system. Considering these, as well as the multifarious pre-election activities that the Comelec is mandated to undertake, the issuance of its Resolution No. 6320 cannot be considered tainted with grave abuse of discretion. Neither is there grave abuse of discretion in the Comelecs denial of Aklats petition on the ground that it

failed to substantiate its claim that it represents the marginalized and underrepresented sectors of society. It should be noted that it was Aklat which asserted in its petition before the poll body that it has re-organized and is now applying for re-qualifcation after its de-registration for failure to comply with the guidelines set forth in the Bagong Bayani case. Thus, the Comelec cannot be faulted for relying on its earlier fnding, absent any evidence in Aklats petition to the contrary, that Aklat is not an organization representing the marginalized and underrepresented sectors, but is actually a business interest or economic lobby group which seeks the promotion and protection of the book publishing industry. Signifcantly, Aklat and A.K.L.A.T. have substantially the same incorporators. In fact, four (4) of Aklats six (6) incorporators[14] are also incorporators of A.K.L.A.T.[15] This substantial similarity is hard to ignore and bolsters the conclusion that the supposed re-organization undertaken by Aklat is plain window-dressing as it has not really changed its character as a business interest of persons in the book publishing industry. The Court observes that Aklats articles of incorporation and document entitled The Facts About Aklat which were attached to its petition for re-qualifcation contain general averments that it supposedly represents marginalized groups such as the youth, indigenous communities, urban poor and farmers/fsherfolk. These general statements do not measure up to the frst guideline set by the Bagong Bayani case for screening party-list participants, i.e., that the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identifed in Section 5 of R.A. 7941. In other words, it must showthrough its constitution, articles of incorporation, bylaws, history, platform of government and track recordthat it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a confict of interests, it has chosen or is likely to choose the interest of such sectors.[16] In this regard, the Court notes with approval the OSGs contention that Aklat has no track record to speak of concerning its representation of marginalized and underrepresented constituencies considering that it has been in existence for only a month prior to the fling of its petition for re-qualifcation. It should fnally be emphasized that the fndings of fact by the Comelec, or any other administrative agency exercising particular expertise in its feld of endeavor, are binding on the Supreme Court.[17] In view of the foregoing, the Comelec can, by no means, be held to have committed grave abuse of discretion to justify the setting aside of the assailed Resolutions. ACCORDINGLY, the Petition is DISMISSED. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Republic of the Philippines SUPREME COURTManila EN BANC G.R. No. 127255 August 14, 1997 JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R. OSMEA, WIGBERTO E. TAADA, AND RONALDO B. ZAMORA, petitioner, vs.JOSE DE VENECIA, RAUL DAZA, RODOLFO ALBANO, THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, AND THE COMMISSIONER OF INTERNAL REVENUE, respondents. MENDOZA, J.: This is a petition for certiorari and/or prohibition challenging the validity of Republic Act No. 8240, which amends certain provisions of the National Internal Revenue Code by imposing so-called "sin taxes" (actually specifc taxes) on the manufacture and sale of beer and cigarettes. Petitioners are members of the House of Representatives. They brought this suit against respondents Jose de Venecia, Speaker of the House of Representatives, Deputy Speaker Raul Daza, Majority Leader Rodolfo Albano, the Executive Secretary, the Secretary of Finance, and the Commissioner of Internal Revenue, charging violation of the rules of the House which petitioners claim are "constitutionally mandated" so that their violation is tantamount to a violation of the Constitution. The law originated in the House of Representatives as H. No. 7198. This bill was approved on third reading on September 12, 1996 and transmitted on September 16, 1996 to the Senate which approved it with certain amendments on third reading on November 17, 1996. A bicameral conference committee was formed to reconcile the disagreeing provisions of the House and Senate versions of the bill. The bicameral conference committee submitted its report to the House at 8 a.m. on November 21, 1996. At 11:48 a.m., after a recess, Rep. Exequiel Javier, chairman of the Committee on Ways and Means, proceeded to deliver his sponsorship speech, after which he was interpellate. Rep. Rogelio Sarmiento was frst to interpellate. He was interrupted when Rep. Arroyo moved to adjourn for lack of quorum. Rep. Antonio Cuenco objected to the motion and asked for a head count. After a roll call, the Chair (Deputy Speaker Raul Daza) declared the presence of a quorum. 1 Rep. Arroyo appealed the ruling of the Chair, but his motion was defeated when put to a vote. The interpellation of the sponsor thereafter proceeded. Petitioner Rep. Joker Arroyo registered to interpellate. He was fourth in the order, following Rep. Rogelio Sarmiento, Rep. Edcel C. Lagman and Rep. Enrique Garcia. In the course of his interpellation, Rep. Arroyo announced that he was going to raise a question on the quorum, although until the end of his interpellation he never did. What happened thereafter is shown in the following transcript of the session on November 21, 1996 of the House of Representatives, as published by Congress in the newspaper issues of December 5 and 6, 1996: MR. ALBANO. MR. Speaker, I move that we now approved and ratify the conference committee report. THE DEPUTY SPEAKER (Mr. Daza). Any objection to the motion? MR. ARROYO. What is that, Mr. Speaker? THE DEPUTY SPEAKER (Mr. Daza). There being none, approved. (Gavel) MR. ARROYO. No, no, no, wait a minute, Mr. Speaker, I stood up. I want to know what is the question that the Chair asked the distinguished sponsor.

THE DEPUTY SPEAKER (Mr. Daza). The session is suspended for one minute. (It was 3:01 p.m.) (3:40 p.m., the session was resumed) THE DEPUTY SPEAKER (Mr. Daza). The session is resumed. MR. ALBANO. Mr. Speaker, I move to adjourn until four o'clock, Wednesday, next week. THE DEPUTY SPEAKER (Mr. Daza). The session is adjourned until four o'clock, Wednesday, next week.(It was 3:40 p.m.) On the same day, the bill was signed by the Speaker of the House of Representatives and the President of the Senate and certifed by the respective secretaries of both Houses of Congress as having been fnally passed by the House of Representatives and by the Senate on November 21, 1996. The enrolled bill was signed into law by President Fidel V. Ramos on November 22, 1996. Petitioners claim that there are actually four different version of the transcript of this portion of Rep. Arroyo's interpellation: (1) the transcript of audio-sound recording of the proceedings in the session hall immediately after the session adjourned at 3:40 p.m. on November 21, 1996, which petitioner Rep. Edcel C. Lagman obtained from he operators of the sound system; (2) the transcript of the proceedings from 3:00 p.m. to 3:40 p.m. of November 21, 1996, as certifed by the Chief of the Transcription Division on November 21, 1996, also obtained by Rep. Lagman; (3) the transcript of the proceedings from 3:00 p.m. to 3:40 p.m. of November 21, 1996 as certifed by the Chief of the Transcription Division on November 28, 1996, also obtained by Rep. Lagman; and (4) the published version abovequoted. According to petitioners, the four versions differ on three points, to wit: (1) in the audio-sound recording the word "approved," which appears on line 13 in the three other versions, cannot be heard; (2) in the transcript certifed on November 21, 1996 the world "no" on line 17 appears only once, while in the other versions it is repeated three times; and (3) the published version does not contain the sentence "(Y)ou better prepare for a quorum because I will raise the question of the quorum," which appears in the other versions. Petitioners' allegations are vehemently denied by respondents. However, there is no need to discuss this point as petitioners have announced that, in order to expedite the resolution of this petition, they admit, without conceding, the correctness of the transcripts relied upon by the respondents. Petitioners agree that for purposes of this proceeding the word "approved" appears in the transcripts. Only the proceedings of the House of Representatives on the conference committee report on H. No. 7198 are in question. Petitioners' principal argument is that R.A. No. 8240 is null and void because it was passed in violation of the rules of the House; that these rules embody the "constitutional mandate" in Art. VI, 16(3) that "each House may determine the rules of its proceedings" and that, consequently, violation of the House rules is a violation of the Constitution itself. They contend that the certifcation of Speaker De Venecia that the law was properly passed is false and spurious. More specifcally, petitioners charge that (1) in violation of Rule VIII, 35 and Rule XVII, 103 of the rules of the House, 2 the Chair, in submitting the conference committee report to the House, did not call for the years or nays, but simply asked for its approval by motion in order to prevent petitioner Arroyo from questioning the presence of a quorum; (2) in violation of Rule XIX, 112, 3 the Chair deliberately ignored Rep. Arroyo's question, "What is that . . . Mr. Speaker?" and did not repeat Rep. Albano's motion to approve or ratify; (3) in violation of Rule XVI, 97, 4 the Chair refused to recognize Rep. Arroyo and instead proceeded to act on Rep. Albano's motion and afterward declared the report approved; and (4) in violation of Rule XX, 121-122, Rule XXI, 123, and Rule XVIII, 109, 5 the Chair suspended the session without frst ruling on Rep. Arroyo's question which, it is alleged, is a point of order or a privileged motion. It is argued that Rep. Arroyo's query should have been resolved upon the resumption of the session on November 28, 1996, because the parliamentary situation at the time of the adjournment remained upon the resumption of the session. Petitioners also charge that the session was hastily adjourned at 3:40 p.m. on November 21, 1996 and the bill

certifed by Speaker Jose De Venecia to prevent petitioner Rep. Arroyo from formally challenging the existence of a quorum and asking for a reconsideration. Petitioners urge the Court not to feel bound by the certifcation of the Speaker of the House that the law had been properly passed, considering the Court's power under Art. VIII, 1 to pass on claims of grave abuse of discretion by the other departments of the government, and they ask for a reexamination of Tolentino v. Secretary of Finance, 6 which affrmed the conclusiveness of an enrolled bill, in view of the changed membership of the Court. The Solicitor General fled a comment in behalf of all respondents. In addition, respondent De Venecia fled a supplemental comment. Respondents' defense is anchored on the principle of separation of powers and the enrolled bill doctrine. They argue that the Court is not the proper forum for the enforcement of the rules of the House and that there is no justifcation for reconsidering the enrolled bill doctrine. Although the Constitution provides in Art. VI, 16(3) for the adoption by each House of its rules of proceedings, enforcement of the rules cannot be sought in the courts except insofar as they implement constitutional requirements such as that relating to three readings on separate days before a bill may be passed. At all events, respondents contend that, in passing the bill which became R.A. No. 8240, the rules of the House, as well as parliamentary precedents for approval of conference committee reports on mere motion, were faithfully observed. In his supplemental comment, respondent De Venecia denies that his certifcation of H. No. 7198 is false and spurious and contends that under the journal entry rule, the judicial inquiry sought by the petitioners is barred. Indeed, Journal No. 39 of the House of Representatives, covering the sessions of November 20 and 21, 1996, shows that "On Motion of Mr. Albano, there being no objection, the Body approved the Conference Committee Report on House Bill No. 7198." 7 This Journal was approved on December 2, 1996 over the lone objection of petitioner Rep. Lagman. 8 After considering the arguments of the parties, the Court fnds no ground for holding that Congress committed a grave abuse of discretion in enacting R.A. No. 8240. This case is therefore dismissed. First. It is clear from the foregoing facts that what is alleged to have been violated in the enactment of R.A. No. 8240 are merely internal rules of procedure of the House rather than constitutional requirements for the enactment of a law, i.e., Art. VI, 26-27. Petitioners do not claim that there was no quorum but only that, by some maneuver allegedly in violation of the rules of the House, Rep. Arroyo was effectively prevented from questioning the presence of a quorum. Petitioners contend that the House rules were adopted pursuant to the constitutional provision that "each House may determine the rules of its proceedings" 9 and that for this reason they are judicially enforceable. To begin with, this contention stands the principle on its head. In the decided cases, 10 the constitutional provision that "each House may determine the rules of its proceedings" was invoked by parties, although not successfully, precisely to support claims of autonomy of the legislative branch to conduct its business free from interference by courts. Here petitioners cite the provision for the opposite purpose of invoking judicial review. But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a violation of a constitutional provision or the rights of private individuals. In Osmea v. Pendatun, 11 it was held: "At any rate, courts have declared that 'the rules adopted by deliberative bodies are subject to revocation, modifcation or waiver at the pleasure of the body adopting them.' And it has been said that 'Parliamentary rules are merely procedural, and with their observance, the courts have no concern. They may be waived or disregarded by the legislative body.' Consequently, 'mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have agreed to a particular measure.'" In United States v. Ballin, Joseph & Co., 12 the rules was stated thus: "The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better,

more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal." In Crawford v. Gilchrist, 13 it was held: "The provision that each House shall determine the rules of its proceedings does not restrict the power given to a mere formulation of standing rules, or to the proceedings of the body in ordinary legislative matters; but in the absence of constitutional restraints, and when exercised by a majority of a constitutional quorum, such authority extends to a determination of the propriety and effect of any action as it is taken by the body as it proceeds in the exercise of any power, in the transaction of any business, or in the performance of any duty conferred upon it by the Constitution." In State ex rel. City Loan & Savings Co. v. Moore, 14 the Supreme Court of Ohio stated: "The provision for reconsideration is no part of the Constitution and is therefore entirely within the control of the General Assembly. Having made the rule, it should be regarded, but a failure to regard it is not the subject-matter of judicial inquiry. It has been decided by the courts of last resort of many states, and also by the United States Supreme Court, that a legislative act will not be declared invalid for noncompliance with rules." In State v. Savings Bank, 15 the Supreme Court of Errors of Connecticut declared itself as follows: "The Constitution declares that each house shall determine the rules of its own proceedings and shall have all powers necessary for a branch of the Legislature of a free and independent state. Rules of proceedings are the servants of the House and subject to its authority. This authority may be abused, but when the House has acted in a matter clearly within its power, it would be an unwarranted invasion of the independence of the legislative department for the court to set aside such action as void because it may think that the House has misconstrued or departed from its own rules of procedure." In McDonald v. State, 16 the Wisconsin Supreme Court held: "When it appears that an act was so passed, no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their own rules in their procedure upon the bill, intermediate its introduction and fnal passage. The presumption is conclusive that they have done so. We think no court has ever declared an act of the legislature void for non-compliance with the rules of procedure made by itself , or the respective branches thereof, and which it or they may change or suspend at will. If there are any such adjudications, we decline to follow them." Schweizer v. Territory 17 is illustrative of the rule in these cases. The 1893 Statutes of Oklahoma provided for three readings on separate days before a bill may be passed by each house of the legislature, with the proviso that in case of an emergency the house concerned may, by two-thirds vote, suspend the operation of the rule. Plaintiff was convicted in the district court of violation of a law punishing gambling. He appealed contending that the gambling statute was not properly passed by the legislature because the suspension of the rule on three readings had not been approved by the requisite two-thirds vote. Dismissing this contention, the State Supreme Court of Oklahoma held: We have no constitutional provision requiring that the legislature should read a bill in any particular manner. It may, then, read or deliberate upon a bill as it sees ft. either in accordance with its own rules, or in violation thereof, or without making any rules. The provision of section 17 referred to is merely a statutory provision for the direction of the legislature in its action upon proposed measures. It receives its entire force from legislative sanction, and it exists only at legislative pleasure. The failure of the legislature to properly weigh and consider an act, its passage through the legislature in a hasty manner, might be reasons for the governor withholding his signature thereto; but this alone, even though it is shown to be a violation of a rule which the legislature had made to govern its own proceedings, could be no reason for the court's refusing its enforcement after it was actually passed by a majority of each branch of the legislature, and duly signed by the governor. The courts cannot declare an act of the legislature void on account of noncompliance with rules of procedure made by itself to govern its deliberations. McDonald v. State, 80 Wis. 407, 50 N.W. 185; In re Ryan, 80 Wis. 414, 50 N.W. 187; State v. Brown, 33 S.C. 151, 11 S.E. 641; Railway Co. v. Gill, 54 Ark. 101, 15 S.W. 18. We conclude this survey with the useful summary of the rulings by former Chief Justice Fernando, commenting on the power of each House of Congress to determine its rules of proceedings. He wrote: Rules are hardly permanent in character. The prevailing view is that they are subject to revocation, modifcation

or waiver at the pleasure of the body adopting them as they are primarily procedural. Courts ordinary have no concern with their observance. They may be waived or disregarded by the legislative body. Consequently, mere failure to conform to them does not have the effect of nullifying the act taken if the requisite number of members have agreed to a particular measure. The above principle is subject, however, to this qualifcation. Where the construction to be given to a rule affects person other than members of the legislative body the question presented is necessarily judicial in character. Even its validity is open to question in a case where private rights are involved. 18 In this case no rights of private individuals are involved but only those of a member who, instead of seeking redress in the House, chose to transfer the dispute to this Court. We have no more power to look into the internal proceedings of a House than members of that House have to look over our shoulders, as long as no violation of constitutional provisions is shown. Petitioners must realize that each of the three departments of our government has its separate sphere which the others may not invade without upsetting the delicate balance on which our constitutional order rests. Due regard for the working of our system of government, more than mere comity, compels reluctance on our part to enter upon an inquiry into an alleged violation of the rules of the House. We must accordingly decline the invitation to exercise our power. Second. Petitioners, quoting former Chief Justice Roberto Concepcion's sponsorship in the Constitutional Commission, contend that under Art. VIII, 1, "nothing involving abuse of discretion [by the other branches of the government] amounting to lack or excess of jurisdiction is beyond judicial review." 19 Implicit in this statement of the former Chief Justice, however, is an acknowledgment that the jurisdiction of this Court is subject to the case and controversy requirement of Art. VIII. 5 and, therefore, to the requirement of a justiciable controversy before courts can adjudicate constitutional questions such as those which arise in the feld of foreign relations. For while Art. VIII, 1 has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, 20 it has not altogether done away with political questions such as those which arise in the feld of foreign relations. As we have already held, under Art. VIII, 1, this Court's function is merely [to] check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing . . . [of] grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective power. . . . It has no power to look into what it thinks is apparent error. 21 If, then, the established rule is that courts cannot declare an act of the legislature void on account merely of noncompliance with rules of procedure made by itself, it follows that such a case does not present a situation in which a branch of the government has "gone beyond the constitutional limits of its jurisdiction" so as to call for the exercise of our Art. VIII. 1 power. Third. Petitioners claim that the passage of the law in the House was "railroaded." They claim that Rep. Arroyo was still making a query to the Chair when the latter declared Rep. Albano's motion approved. What happened is that, after Rep. Arroyo's interpellation of the sponsor of the committee report, Majority Leader Rodolfo Albano moved for the approval and ratifcation of the conference committee report. The Chair called out for objections to the motion. Then the Chair declared: "There being none, approved." At the same time the Chair was saying this, however, Rep. Arroyo was asking, "What is that . . . Mr. Speaker?" The Chair and Rep. Arroyo were talking simultaneously. Thus, although Rep. Arroyo subsequently objected to the Majority Leader's motion, the approval of the conference committee report had by then already been declared by the Chair, symbolized by its banging of the gavel. Petitioners argue that, in accordance with the rules of the House, Rep. Albano's motion for the approval of the conference committee report should have been stated by the Chair and later the individual votes of the members should have been taken. They say that the method used in this case is a legislator's nightmare because it suggests unanimity when the fact was that one or some legislators opposed the report. No rule of the House of Representative has been cited which specifcally requires that in case such as this involving approval of a conference committee report, the Chair must restate the motion and conduct a viva voce

or nominal voting. On the other hand, as the Solicitor General has pointed out, the manner in which the conference committee report on H. No. 7198 was approval was by no means a unique one. It has basis in legislative practice. It was the way the conference committee report on the bills which became the Local Government Code of 1991 and the conference committee report on the bills amending the Tariff and Customs Code were approved. In 1957, the practice was questioned as being contrary to the rules of the House. The point was answered by Majority Leader Arturo M. Tolentino and his answer became the ruling of the Chair Mr. Tolentino said: Mr. TOLENTINO. The fact that nobody objects means a unanimous action of the House. Insofar as the matter of procedure is concerned, this has been a precedent since I came here seven years ago, and it has been the procedure in this House that if somebody objects, then a debate follows and after the debate, then the voting comes in. xxx xxx xxx Mr. Speaker, a point of order was raised by the gentleman from Leyte, and I wonder what his attitude is nor on his point of order. I should just like to state that I believe that we have had a substantial compliance with the Rules. The Rule invoked is not one that refers to statutory or constitutional requirement, and a substantial compliance, to my mind, is suffcient. When the Chair announces the vote by saying "Is there any objection?" and nobody objects, then the Chair announces "The bill is approved on second reading." If there was any doubt as to the vote, any motion to divide would have been proper. So, if that motion is not presented, we assume that the House approves the measure. So I believe there is substantial compliance here, and if anybody wants a division of the House he can always ask for it, and the Chair can announce how many are in favor and how many are against. 22 Indeed, it is no impeachment of the method to say that some other way would be better, more accurate and even more just. 23 The advantages or disadvantages, the wisdom or folly of a method do not present any matter for judicial consideration. 24 In the words of the U.S. Circuit Court of Appeals, "this Court cannot provide a second opinion on what is the best procedure. Notwithstanding the deference and esteem that is properly tendered to individual congressional actors, our deference and esteem for the institution as a whole and for the constitutional command that the institution be allowed to manage its own affairs precludes us from even attempting a diagnosis of the problem." 25 Nor does the Constitution require that the yeas and the nays ofthe Members be taken every time a House has to vote, except only in the following instances; upon the last and third readings of a bill, 26 at the request of oneffth of the Members present, 27 and in repassing a bill over the veto of the President. 28 Indeed, considering the fact that in the approval of the original bill the votes of the members by yeas and nays had already been taken, it would have been sheer tedium to repeat the process. Petitioners claim that they were prevented from seeking reconsideration allegedly as a result of the precipitate suspension and subsequent adjournment of the session. 29 It would appear, however, that the session was suspended to allow the parties to settle the problem, because when it resumed at 3:40 p.m. on that day Rep. Arroyo did not say anything anymore. While it is true that the Majority Leader moved for adjournment until 4 p.m. of Wednesday of the following week, Rep. Arroyo could at least have objected if there was anything he wanted to say. The fact, however, is that he did not. The Journal of November 21, 1996 of the House shows. ADJOURNMENT OF SESSION On motion of Mr. Albano, there being no objection, the Chair declared the session adjourned until four o'clock in the afternoon of Wednesday, November 27, 1996. It was 3:40 p.m. Thursday, November 21, 1996. (emphasis added) This Journal was approved on December 3, 1996. Again, no one objected to its approval except Rep. Lagman.

It is thus apparent that petitioners' predicament was largely of their own making. Instead of submitting the proper motions for the House to act upon, petitioners insisted on the pendency of Rep. Arroyo's question as an obstacle to the passage of the bill. But Rep. Arroyo's question was not, in form or substance, a point of order or a question of privilege entitled to precedence. 30 And even if Rep. Arroyo's question were so, Rep. Albano's motion to adjourn would have precedence and would have put an end to any further consideration of the question. 31 Given this fact, it is diffcult to see how it can plausibly be contended that in signing the bill which became R.A. No. 8240, respondent Speaker of the House be acted with grave abuse of his discretion. Indeed, the phrase "grave abuse of discretion amounting to lack or excess of jurisdiction" has a settled meaning in the jurisprudence of procedure. It means such capricious and whimsical exercise of judgment by a tribunal exercising judicial or quasi judicial power as to amount to lack of power. As Chief Justice Concepcion himself said in explaining this provision, the power granted to the courts by Art. VIII. 1 extends to cases where "a branch of the government or any of its offcials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction." 32 Here, the matter complained of concerns a matter of internal procedure of the House with which the Court should not he concerned. To repeat, the claim is not that there was no quorum but only that Rep. Arroyo was effectively prevented from questioning the presence of a quorum. Rep. Arroyo's earlier motion to adjourn for lack of quorum had already been defeated, as the roll call established the existence of a quorum. The question of quorum cannot be raised repeatedly especially when the quorum is obviously present for the purpose of delaying the business of the House. 33 Rep. Arroyo waived his objection by his continued interpellation of the sponsor for in so doing he in effect acknowledged the presence of a quorum. 34 At any rate it is noteworthy that of the 111 members of the House earlier found to be present on November 21, 1996, only the fve, i.e., petitioners in this case, are questioning the manner by which the conference committee report on H. No. 7198 was approved on that day. No one, except Rep. Arroyo, appears to have objected to the manner by which the report was approved. Rep. John Henry Osmea did not participate in the bicameral conference committee proceedings. 35 Rep. Lagman and Rep. Zamora objected to the report 36 but not to the manner it was approved; while it is said that, if voting had been conducted. Rep. Taada would have voted in favor of the conference committee report. 37 Fourth. Under the enrolled bill doctrine, the signing of H. No. 7198 by the Speaker of the House and the President of the Senate and the certifcation by the secretaries of both Houses of Congress that it was passed on November 21, 1996 are conclusive of its due enactment. Much energy and learning is devoted in the separate opinion of Justice Puno, joined by Justice Davide, to disputing this doctrine. To be sure, there is no claim either here or in the decision in the EVAT cases [Tolentino v. Secretary of Finance] that the enrolled bill embodies a conclusive presumption. In one case 38 we "went behind" an enrolled bill and consulted the Journal to determine whether certain provisions of a statute had been approved by the Senate. But, where as here there is no evidence to the contrary, this Court will respect the certifcation of the presiding offcers of both Houses that a bill has been duly passed. Under this rule, this Court has refused to determine claims that the three-fourths vote needed to pass a proposed amendment to the Constitution had not been obtained, because "a duly authenticated bill or resolution imports absolute verify and is binding on the courts." 39 This Court quoted from Wigmore on Evidence the following excerpt which embodies good, if old-fashioned, democratic theory: The truth is that many have been carried away with the righteous desire to check at any cost the misdoings of Legislatures. They have set such store by the Judiciary for this purpose that they have almost made them a second and higher Legislature. But they aim in the wrong direction. Instead of trusting a faithful Judiciary to check an ineffcient Legislature, they should turn to improve the Legislature. The sensible solution is not to patch and mend casual errors by asking the Judiciary to violate legal principle and to do impossibilities with the Constitution; but to represent ourselves with competent, careful, and honest legislators, the work of whose hands on the statute-roll may come to refect credit upon the name of popular government. 40 This Court has refused to even look into allegations that the enrolled bill sent to the President contained provisions which had been "surreptitiously" inserted in the conference committee:

[W]here allegations that the constitutional procedures for the passage of bills have not been observed have 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. 41 It has refused to look into charges that an amendment was made upon the last reading of a bill in violation of Art. VI. 26(2) of the Constitution that "upon the last reading of a bill, no amendment shall be allowed." 42 In other cases, 43 this Court has denied claims that the tenor of a bill was otherwise than as certifed by the presiding offcers of both Houses of Congress. The enrolled bill doctrine, as a rule of evidence, is well established. It is cited with approval by text writers here and abroad. 44 The enrolled bill rule rests on the following considerations: . . . As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the offcial 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 court to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution. 45 To overrule the doctrine now, as the dissent urges, is to repudiate the massive teaching of our cases and overthrow an established rule of evidence. Indeed, petitioners have advanced no argument to warrant a departure from the rule, except to say that, with a change in the membership of the Court, the three new members may be assumed to have an open mind on the question of the enrolled bill rule Actually, not three but four (Cruz, Feliciano, Bidin, and Quiason, JJ.) have departed from the Court since our decision in the EVAT cases and their places have since been taken by four new members (Francisco, Hermosisima, Panganiban, and Torres, JJ.) Petitioners are thus simply banking on the change in the membership of the Court. Moreover, as already noted, the due enactment of the law in question is confrmed by the Journal of the House of November 21, 1996 which shows that the conference committee report on H. No. 7198, which became R.A. No. 8740, was approved on that day. The keeping of the Journal is required by the Constitution, Art. VI, 16(4) provides: Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-ffth of the Members present, be entered in the Journal. Each House shall also keep a Record of its proceedings. The Journal is regarded as conclusive with respect to matters that are required by the Constitution to be recorded therein. 46 With respect to other matters, in the absence of evidence to the contrary, the Journals have also been accorded conclusive effect. Thus, in United States v. Pons, 47 this Court spoke of the imperatives of public policy for regarding the Journals as "public memorials of the most permanent character," thus: "They should be public, because all are required to conform to them; they should be permanent, that rights acquired today upon the faith of what has been declared to be law shall not be destroyed tomorrow, or at some remote period of time, by facts resting only in the memory of individuals." As already noted, the bill which became R.A. No. 8240 is shown in the Journal. Hence its due enactment has been duly proven. It would be an unwarranted invasion of the prerogative of a coequal department for this Court either to set aside a legislative action as void because the Court thinks the House has disregarded its own rules of procedure, or to

allow those defeated in the political arena to seek a rematch in the judicial forum when petitioners can fnd their remedy in that department itself. The Court has not been invested with a roving commission to inquire into complaints, real or imagined, of legislative skullduggery. It would be acting in excess of its power and would itself be guilty of grave abuse of its discretion were it to do so. The suggestion made in a case 48 may instead appropriately be made here: petitioners can seek the enactment of a new law or the repeal or amendment of R.A. No. 8240. In the absence of anything to the contrary, the Court must assume that Congress or any House thereof acted in the good faith belief that its conduct was permitted by its rules, and deference rather than disrespect is due the judgment of that body. 49 WHEREFORE, the petition for certiorari and prohibition is DISMISSED. SO ORDERED. Narvasa, C.J., Padilla, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur. Regalado, J., concurs in the result. Bellosillo and Panganiban, JJ., took no part. Torres, Jr., J., is on leave.

Separate Opinions

VITUG, J., concurring: When the 1987 Constitution has embodied, in its circumscription of judicial power under Section 1, Article VIII, of the Constitution, the determination of whether or not there is grave abuse of discretion on the part of any branch or instrumentality of government, the Supreme Court, upon which that great burden has been imposed, could not have been thought of as likewise being thereby tasked with the awesome responsibility of overseeing the entire bureaucracy. The term grave abuse of discretion has long been understood in our jurisprudence as, and confned to, a capricious and whimsical or despotic exercise of judgment as amounting to lack or excess of jurisdiction. I see nothing of that sort in the case at bar. Absent a clear case of grave abuse of discretion, like the patent disregard of a Constitutional proscription, I would respect the judgment of Congress under whose province the specifc responsibility falls and the authority to act is vested. To do otherwise would be an unwarranted intrusion into the internal affairs of a co-equal, independent and coordinate branch of government. At no time, it would seem to me, has it been intended by the framers of the fundamental law to cause a substantial deviation, let alone departure, from the time-honored and accepted principle of separation, but balanced, powers of the three branches of government. There is, of course, a basic variant between the old rule and the new Charter on the understanding of the term "judicial power." Now, the Court is under mandate to assume jurisdiction over, and to undertake judicial inquiry into, what may even be deemed to be political questions provided, however, that grave abuse of discretion the sole test of justiciability on purely political issues is shown to have attended the contested act. All taken, I most humbly reiterate my separate opinion in Tolentino vs. Secretary of Finance and companion cases (G.R. No. 115455, etc., 235 SCRA 630) and vote to deny the instant petition. ROMERO, J., separate opinion:

In fling this separate opinion for the dismissal of the instant petition, I am not backtracking from the dissent which I expressed in Tolentino v. Secretary of Finance. 1 I am somewhat bothered that if I do not elaborate, the vote which I cast today might be wrongly construed as an implied abandonment of, and inconsistent with, my frm stance in Tolentino. The landmark case of Tolentino, just like the one under consideration, involved a similar challenge to the constitutionality of a signifcant tax measure namely, Republic Act No. 7716, otherwise known as the Expanded Value-Added Tax (EVAT) Law. There, a number of issues, both substantive and procedural, were posed by petitioners, each of which was discussed by the majority opinion of Mr. Justice Vicente V. Mendoza who, incidentally, is also the ponente of instant decision. At any rate, it is worth noting that I did not entirely disagree with each and every argument of the opinion, most especially those touching upon substantive issues. My main objection in Tolentino, it will be recalled, focused instead on what I perceived was a substantial breach and disregard by the Legislature of vital constitutional requirements ordaining the procedures to be followed in the passage of a bill which, in my opinion, the majority seemed to have cavalierly put to rest by hiding under the cloak of the enrolled bill theory 2 and the precept that the Court is not the proper forum for the enforcement of internal legislative rules allegedly violated. 3 To me, the position then taken by the majority exhibited blind adherence to otherwise sound principles of law which did not, however, ft the facts as presented before the Court. Hence, I objected, not so much because I found these principles unwise or obsolete, but rather because they were applied, or misapplied, to a case which I believe did not call for their application. When I differed from the majority opinion which applied the enrolled bill theory, I was very careful to emphasize that reliance thereon is not to be discontinued but that its application must be limited to minor matters relating more to form and factual issues which do not materially alter the essence and substance of the law itself. Thus: 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 certifcation, 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. 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. 4 As regards the principle that the Court is not the proper forum for the enforcement of internal legislative rules, both the majority and I were actually of one mind such that I was quick to qualify the extent of the Court's review power in respect of internal procedures in this wise: I wish to consider this issue in light of Article VIII, Sec. 1 of the Constitution which provides that "(j)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. 5 I differed, however, from the majority insofar as that principle was applied. In this respect, I showed that the introduction of several provisions in the Bicameral Conference Committee Report did not only violate the

pertinent House and Senate Rules defning the limited power of the conference committee but that the Constitutional proscription against any amendment upon the last reading of a bill was likewise breached. Hence, in view of these lapses, I thought that judicial review would have been proper in order to uphold the Constitution. This the majority, however, disregarded invoking the same principle which should have justifed the Court in questioning the actuations of the legislative branch. At this juncture, I wish to reiterate my continuing adherence to the aforesaid reasons I cited in the Tolentino dissent. At the same time, I realize that the arguments I raised in my dissent would not hold true in the instant petition. For one thing, unlike in Tolentino, the rules of the House of Representatives allegedly violated by respondents in the instant petition are purely internal rules designed for the orderly conduct of the House's business. They have no direct or reasonable nexus to the requirements and proscriptions of the Constitution in the passage of a bill which would otherwise warrant the Court's intervention. Likewise, the petitioners are not in any way complaining that substantial alterations have been introduced in Republic Act No. 8240. The thrust of petitioners' arguments in attacking the validity of the law is merely with respect to the fact that Rep. Joker Arroyo was effectively prevented from invoking the question of quorum and not that the substance thereof offends constitutional standards. This being the case, I do not now feel called upon to invoke my previous argument that the enrolled bill theory should not be conclusive as regards "substantive changes in a bill introduced towards the end of its tortuous trip through Congress," when it is palpably unwarranted under the circumstances of instant petition. PUNO, J., concurring and dissenting: I concur in the result. I do appreciate the fne legal disquisition of Mr. Justice Mendoza to justify the dismissal of the case at bar. Nevertheless, I have to express my views on the alleged non-justiciability of the issue posed by the petitioner as well as the applicability of the archaic enroll bill doctrine in light of what I perceive as new wrinkles in our law brought about by the 1987 Constitution and the winds of changing time. I With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over the case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v. Ballin, 1 as a window to view the issues before the Court. It is in Ballin where the US Supreme Court frst defned the boundaries of the power of the judiciary to review congressional rules. 2 It held: xxx xxx xxx The Constitution, in the same section, provides, that "each house may determine the rules of its proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members suffcient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of

proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. Ballin, clearly confrmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e., whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method has a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers. Ballin was followed in 1932 by the case of US v. Smith. 3 In Smith, the meaning of sections 3 and 4 of Rule XXXVIII of the US Senate was in issue, viz: xxx xxx xxx 3. When a nomination is confrmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate; but if a notifcation of the confrmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notifcation to the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a fnal disposition of such motion. 4. Nominations confrmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise ordered by the Senate. It appears that the nomination of Mr. Smith as member of the Federal Power Commission has been confrmed by the US Senate. The resolution of confrmation was sent to the US President who then signed the appointment of Mr. Smith. The Senate, however, reconsidered the confrmation of Mr. Smith and requested the President to return its resolution of confrmation. The President refused. A petition for quo warranto was fled against Mr. Smith. The Court, speaking thru Mr. Justice Brandeis, assumed jurisdiction over the dispute relying on Ballin. It exercised jurisdiction although "the question primarily at issue relates to the construction of the applicable rules, not to their constitutionality." Signifcantly, the Court rejected the Senate interpretation of its own rules even while it held that it must be accorded the most sympathetic consideration. xxx xxx xxx Sixth. To place upon the standing rules of the Senate a construction different from that adopted by the Senate itself when the present case was under debate is a serious and delicate exercise of judicial power. The Constitution commits to the Senate the power to make its own rules; and it is not the function of the Court to say that another rule would be better. A rule designed to ensure due deliberation in the performance of the vital function of advising and consenting to nominations for public offce, moreover, should receive from the Court the most sympathetic consideration. But the reasons, above stated, against the Senate's construction seem to us compelling. We are confrmed in the view we have taken by the fact, since the attempted reconsideration of Smith's confrmation, the Senate itself seems uniformly to have treated the ordering of immediate notifcation to the President as tantamount to authorizing him to proceed to perfect the appointment. Smith, of course, involves the right of a third person and its ruling falls within the test spelled out in Ballin. Smith was followed by the 1948 case of Christoffel v. United States. 4 Christoffel testifed before the Committee on Education and Labor of the House of Representatives. He denied he was a communist and was charged with perjury in the regular court. He adduced evidence during the trial that the committee had no quorum when the

perjurious statement was given. Nonetheless, he was convicted in view of the judge's charge to the members of the jury that to fnd Christoffel guilty, they had to fnd beyond a reasonable doubt that xxx xxx xxx . . . the defendant Christoffel appeared before a quorum of at least thirteen members of the said Committee, and that "at least that number must have been actually and physically present . . . If such a Committee so met, that is, if thirteen members did meet at the beginning of the afternoon session of March 1, 1947, and thereafter during the progress of the hearing some of them left temporarily or otherwise and no question was raised as to the lack of a quorum, then the fact that the majority did not remain there would not affect, for the purposes of this case, the existence of that Committee as a competent tribunal provided that before the oath was administered and before the testimony of the defendant was given there were present as many as 13 members of that Committee at the beginning of the afternoon session . . . . Christoffel objected to the charge on the ground that it allowed the jury to assume there was a continuous quorum simply because it was present at the start of the meeting of the Committee. Under the House rules, a quorum once established is presumed to continue until the lack of quorum is raised. Again, the court assumed jurisdiction over the case. A majority of the Court, with Mr. Justice Murphy, as ponente, defned the issue as "what rules the House had established and whether they have been followed." It held: xxx xxx xxx Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us. The question is neither what rules Congress may establish for its own governance, nor whether presumptions of continuity may protect the validity of its legislative conduct. The question is rather what rules the House has established and whether they have been followed. It of course has the power to defne what tribunal is competent to exact testimony and the conditions that establish its competency to do so. The heart of this case is that by the charge that was given it the jury was allowed to assume that the conditions of competency were satisfed even though the basis in fact was not established and in face of a possible fnding that the facts contradicted the assumption. We are measuring a conviction of crime by the statute which defned it. As a consequence of this conviction, petitioner was sentenced to imprisonment for a term of from two to six years. An essential part of a procedure which can be said fairly to infict such a punishment is that all the elements of the crime charged shall be proved beyond a reasonable doubt. An element of the crime charged in the instant indictment is the presence of a competent tribunal, and the trial court properly so instructed the jury. The House insists that to be such a tribunal a committee must consist of a quorum, and we agree with the trial court's charge that to convict, the jury had to be satisfed beyond a reasonable doubt that there were "actually and physically present" a majority of the committee. Then to charge, however, that such requirement is satisfed by a fnding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed. This not only seems to us contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction. The minority complained that the "House has adopted the rule and practice that a quorum once established is presumed to continue unless and until a point of no quorum is raised. By this decision, the Court, in effect, invalidates that rule . . . ." The minority view commanded only the vote of three (3) justices. The US Supreme Court pursued the same line in 1963 in deciding the case of Yellin v. United States. 5 Yellin was indicted on fve counts of willfully refusing to answer questions put to him by a sub-committee of the House Committee on Un-American Activities. He was convicted by the District Court of contempt of Congress on four counts. The conviction was affrmed by the Court of Appeals for the 7th Circuit. On certiorari, he assailed his conviction on the ground that the Committee illegally denied his request to be heard in executive session . He alleged there was a violation of Committee Rule IV which provides that "if a majority of the Committee or sub-committee, duly

appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or admissibility of conducting such interrogation thereafter in a public hearing." in a 5-4 decision, the Court, speaking thru Mr. Chief Justice Warren, held: xxx xxx xxx Yellin should be permitted the same opportunity for judicial review when he discovers at trial that his rights have been violated. This is especially so when the Committee's practice leads witnesses to misplaced reliance upon its rules. When reading a copy of the Committee's rules, which must be distributed to every witness under Rule XVII, the witness' reasonable expectation is that the Committee actually does what it purports to do, adhere to its own rules. To foreclose a defense based upon those rules, simply because the witness was deceived by the Committee's appearance of regularity, is not fair. The Committee prepared the groundwork for prosecution in Yellin's case meticulously. It is not too exacting to require that the Committee be equally meticulous in obeying its own rules. It additionally bears stressing that in the United States, the judiciary has pruned the "political thicket." In the benchmark case of Baker v. Carr, 6 the US Supreme Court assumed jurisdiction to hear a petition for reapportionment of the Tennessee legislature ruling that "the political question doctrine, a tool for maintenance of government order, will not be so applied as to promote only disorder" and that "the courts cannot reject as 'no law suit,' a bona fde controversy as to whether some action denominated 'political' exceeds constitutional authority." In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts ". . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the government can no longer invoke the political question defense. Section 18 of Article VII completely eliminated this defense when it provided: xxx xxx xxx The Supreme Court may review, in an appropriate proceeding fled by any citizen, the suffciency of the factual basis 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 fling. 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 CONCOM did not only outlaw the use of the political question defense in national security cases. To a great degree, it diminished its use as a shield to protect other abuses of government by allowing courts to penetrate the shield with the new power to review acts of any branch or instrumentality of the government ". . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction." In Tolentino v. Secretary of Finance, 7 I posited the following postulates: xxx xxx xxx 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. 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: xxx xxx xxx . . . In other words, the judiciary is the fnal arbiter on the question of whether or not a branch of government or any of its offcials 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. 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 offcials 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. I beg to disagree for the view misses the signifcant changes made in our constitutional canvass to cure the legal defciencies 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." It also guaranteed fscal autonomy to the Judiciary. 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. The power of confrming appointments to the judiciary was also taken away from Congress. The President was likewise given a specifc time to fll up vacancies in the judiciary ninety (90) days from the occurrence of the vacancy in case of the Supreme Court and ninety (90) days from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower courts. To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the power to "appoint all offcials and employees of the Judiciary in accordance with the Civil Service Law." And to make the separation of the judiciary from the other branches of government more watertight, it prohibited members of the judiciary to be ". . . designated to any agency performing quasi judicial or administrative functions." While the Constitution strengthened the sinews of the Supreme Court, it reduced the powers of the two other branches of government, especially the Executive. Notable of the 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 suffciency of the factual basis for the exercise of said power may be reviewed by this Court in an appropriate proceeding fled by any citizen. The provision defning 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 provisionwas dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. . . . xxx xxx xxx

In sum, I submit that in imposing to this Court the duty to annul 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 fnding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifes the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to defne the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheath the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, 8 I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners. II Again with due respect, I dissent from the majority insofar as it relied on the enrolled bill doctrine to justify the dismissal of the petition at bar. An enrolled bill is one which has been duly introduced, fnally enacted by both Houses, signed by the proper offcers of each House and approved by the President. 9 It is a declaration by the two Houses, through their presiding offcers, to the President that a bill, thus attested, has received in due 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. The enrolled bill originated in England where there is no written Constitution controlling the legislative branch of the government, and the acts of Parliament, being regarded in their nature as judicial as emanating from the highest tribunal in the land are placed on the same footing and regarded with the same veneration as the judgment of the courts which cannot be collaterally attacked. 10 In England, the conclusiveness of the bill was premised on the rationale that "an ad of parliament thus made is the exercise of the highest authority that this kingdom acknowledges upon earth. And it cannot be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of parliament; for it is a maxim in law that it requires the same strength to dissolve as to create an obligation. 11 Over the years, the enrolled bill theory has undergone important mutations. Some jurisdictions have adopted the modifed entry or affrmative contradiction rule. Under this rule, the presumption in favor of the enrolled bill is not conclusive. The rule concedes validity to the enrolled bill unless there affrmatively appears in the journals of the legislature a statement that there has not been compliance with one or more of the constitutional requirements. 12 Other jurisdictions have adopted the Extrinsic Evidence Rule which holds that an enrolled bill is only prima facie evidence that it has been regularly enacted. The prima facie presumption, however, can be destroyed by clear, satisfactory and convincing evidence that the constitutional requirements in enacting a law have been violated. For this purpose, journals and other extrinsic evidence are allowed to be received. 13 Some limit the use of extrinsic evidence to issues of fraud or mistakes. 14 These variants developed after a re-examination of the rationale of the enrolled bill. The modern rationale for the enrolled bill theory was spelled out in Field v. Clark, 15 viz.: xxx xxx xxx The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in open session, of an enrolled bill, is an offcial attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two Houses, through their presiding offcers, 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 offcial 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 the 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. The principle of separation of powers is thus the principal prop of the enrolled bill doctrine. The doctrine is also justifed as a rule of convenience. Supposedly, it avoids diffcult questions of evidence. 16 It is also believed that it will prevent the fling of too many cases which will cast a cloud of uncertainty on laws passed by the legislature. As explained in Ex Pacte Wren 17 "if the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, diffculty, and painful uncertainty appalling in its contemplation, and multiplying a hundredfold the alleged uncertainty of the law." The conclusiveness of the enrolled bill is also justifed on the ground that journals and other extrinsic evidence are conducive to mistake, if not fraud. These justifcations for the enrolled bill theory have been rejected in various jurisdictions in the United States. In his Dissenting Opinion in Tolentino v. Secretary of Finance, and its companion cases, 18 Mr. Justice Regalado cited some of the leading American cases which discussed the reasons for the withering, if not demise of the enrolled bill theory, viz: xxx xxx xxx Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that doctrine has long been revisited and qualifed, 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 fxed by the Constitution of which journals of respective houses of Legislature are required to furnish the evidence. In fact, in Gwynn vs. Hardee, etc., et al., the Supreme Court of Florida declared (1) While the presumption is that the enrolled bill, as signed by the legislative offces and fled 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 offcers, 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 frmly 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., pertinent excerpts wherefrom are extensively reproduced hereunder. . . . In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of this court which created and nurtured 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 fnal 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 certifed by the appropriate offcers, 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 fnal 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 fnal act, the enrolled bill, be given effcacy. (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 criticism as follows: (1) Artifcial 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 to disturb settled points of law. Yet, this rule is not infexible, 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). 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 diffculties and complexities should not deter this pursuit and we reject any doctrine or presumption

that so provides. Lastly, we address the premise that the equality of the various branches of government requires that we shut our eyes to constitutional failing and other errors of our copartners in government. We simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the constitution is "void." The proper exercise of judicial authority requires us to recognize any law which is unconstitutional and to declare it void. Without elaborating the point, we believe that under section 228 of the Kentucky Constitution it is our obligation to "support . . . the Constitution of the commonwealth." We are sworn to see that violations of the constitution by any person, corporation, state agency or branch or government are brought to light and corrected. To countenance an artifcial 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." . . . . 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. . . . Clearly, the enrolled bill doctrine no longer enjoys its once unassailable respectability in United States. Sutherland reveals that starting in the 1940's,". . . the tendency seems to be toward the abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima facie presumption of validity which may be attacked by any authoritative source of information." 19 It is high time we re-examine our preference for the enrolled bill doctrine. It was in the 1947 case of Mabanag v. Lopez Vito, 20 that this Court, with three (3) justices dissenting, frst embraced the rule that a duly authenticated bill or resolution imports absolute verity and is binding on the courts. In 1963, we frmed up this ruling in Casco Philippine Chemical Co. v. Gimenez, 21 thus: xxx xxx xxx Hence, "urea formaldehyde" is clearly a fnished product which is patently distinct and different from "urea" and "formaldehyde," as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde." Petitioner contends, however, that the bill approved in Congress contained the copulative conjunction "and" between the term "urea" and "formaldehyde," and that the members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements in the manufacture of the synthetic resin glue called "urea formaldehyde," not the latter as a fnished product, citing in support of this view the statements made on the foor of the Senate, during the consideration of the bill before said House, by members thereof. But said individual statements do not necessarily refect the view of the Senate. Much less do they indicate the intent of the House of Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off Gaz. 615; Mayor Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. vs. Games and Amusement Board, L-12727 [February 19, 1960]). Furthermore, it is well settled that enrolled bill which uses the term "urea formaldehyde" instead of "urea and formaldehyde" conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L18684, Sept. 14, 1961). If there has been any mistake in the printing of the bill before it was certifed by the offcers of Congress and approved by the Executive on which we cannot speculate without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system the remedy is by amendment or curative legislation, not by judicial decree. In the 1969 case of Morales v. Subido, 22 we reiterated our fdelity to the enrolled bill doctrine, viz: . . . . We cannot go behind the enrolled Act to discover what really happened. The respect due to the other branches of the Government demands that we act upon the faith and credit of what the offcers of the said branches attest to as the offcial acts of their respective departments. Otherwise we would be cast in the unenviable and unwanted role of a sleuth trying to determine what actually did happen in the labyrinth of lawmaking, with consequent impairment of the integrity of the legislative process. The investigation which the

petitioner would like this Court to make can be better done in Congress. After all, House cleaning the immediate and imperative need for which seems to be suggested by the petitioner can best be effected by the occupants thereof. Expressed elsewise, this is a matter worthy of the attention not of an Oliver Wendell Holmes but of a Sherlock Holmes. Signifcantly, however, Morales diluted the conclusiveness rule of the enrolled bill doctrine. The ponencia stressed: By what we have essayed above we are not of course to be understood as holding that in all cases the journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution 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. 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. In the 1974 case of Astorga v. Villegas, 23 we further diluted the enrolled bill doctrine when we refused to apply it after the Senate President declared his signature on the bill as invalid. We ruled: xxx xxx xxx Petitioner's argument that the attestation of the presiding offces of Congress is conclusive proof of a bill's due enactment, required, it is said, by the respect due to a co-equal department of the government, is neutralized in this case by the fact that the Senate President declared his signature on the bill to be invalid and issued a subsequent clarifcation that the invalidation for his signature meant that the bill he had signed had never been approved by the Senate. Obviously this declaration should be accorded even greater respect than the attestation it invalidated, which it did for a reason that is undisputed in fact and indisputable in logic. As far as Congress itself is concerned, there is nothing sacrosanct in the certifcation made by the presiding offcers. It is merely a mode of authentication. The law-making process in Congress ends when the bill is approved by both Houses, and the certifcation 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 by Congress and not the signatures of the presiding offcers 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 is the fnal passage and it follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding offcer, the proof that it has 'passed both houses' will satisfy the constitutional requirement. Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the Senate President, granting it to have been validly made, would only mean that there was no attestation at all, but would not affect the validity of the statute. Hence, it is pointed out, Republic Act No. 4065 would remain valid and binding. This argument begs the issue. It would limit the court's inquiry to the presence or absence of the attestation and to the effect of its absence upon the validity of the statute. The inquiry, however, goes farther. Absent such attestation as a result of the disclaimer, and consequently there being no enrolled bill to speak of, what evidence is there to determine whether or not the bill had been duly enacted. In such a case the entries in the journal should be consulted. The journal of the proceedings of each House of Congress is no ordinary record. The Constitution requires it. While it is true that the journal is not authenticated and is subject to the risk of misprinting and other errors, the point is irrelevant in this case. This Court is merely asked to inquire whether the text of House Bill No. 9266 signed by the Chief Executive was the same text passed by both Houses of Congress. Under the specifc facts and circumstances of this case, this Court can do this and resort to the Senate journal for the purpose. The journal discloses that substantial and lengthy amendments were introduced on the foor and approved by the Senate but were not incorporated in the printed text sent to the President and signed by him. This Court is not asked to incorporate such amendments into the alleged law, which admittedly is a risky undertaking, but to declare that the bill was not duly enacted and therefore did not become law. This We do, as indeed both the President of the Senate and the Chief Executive did, when they withdrew their signatures therein. In the face of the manifest error committed and subsequently rectifed by the President of the Senate and by the Chief Executive, for this Court to perpetuate that error by disregarding such rectifcation and holding that the erroneous bill has become law would be to sacrifce truth to fction and bring about mischievous consequences not intended by the law-making body.

In 1993, the enrolled bill doctrine was again used as a secondary rationale in the case of Philippine Judges Association v. Prado, 24 In this case, the judges claimed that the pertinent part of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary appeared only in the Conference Committee Report. In rejecting this contention, this Court ruled: While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is 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). 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 certifcation 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 certifcation of the approval of a bill from the presiding offcers 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 fnal reading of the bill). The journals are themselves also binding on the Supreme Court, as we held in the old (but stills valid) case of U.S. vs. Pens, 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 fnal 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 the Article VI, Sec. 26(2) of the Constitution. We are bound by such offcial assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. Finally in 1994 came the case of Tolentino v. Secretary of Finance, et al and its companion cases. 25 Involved in the case was the constitutionality of R.A. No. 7716, otherwise known as the Expanded Value Added Tax Law. The majority 26 partly relied on the enrolled bill doctrine in dismissing challenges to the constitutionality of R.A. No. 7716. It held: xxx xxx xxx Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases manifest frm 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 or that certain provisions of a statute had been "smuggled" in the printing of the bill 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 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 fad 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. These cases show that we have not blindly accepted the conclusiveness of the enrolled bill. Even in Tolentino, Mr. Justice Mendoza was cautious enough to hold that "no claim is here made that the enrolled bill is absolute." I respectfully submit that it is now time for the Court to make a defnitive pronouncement that we no longer give our unqualifed support to the enrolled bill doctrine. There are compelling reasons for this suggested change in stance. For one, the enrolled bill is appropriate only in England where it originated because in England there is no written Constitution and the Parliament is supreme. For another, many of the courts in the United States have broken away from the rigidity and unrealism of the enrolled bill in light of contemporary developments in lawmaking. 27 And more important, our uncritical adherence to the enrolled bill is inconsistent with our Constitution, laws and rules. In Mabanag, 28 we relied on section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 as a principal reason in embracing the enrolled bill. This section, however has long been repealed by our Rules of Court. A half glance at our Rules will show that its section on conclusive presumption does not carry the conclusive presumption we give to an enrolled bill. But this is not all. The conclusiveness of an enrolled bill which all too often results in the suppression of truth cannot be justifed under the 1987 Constitution. The Preamble of our Constitution demands that we live not only under a rule of law but also under a regime of truth. Our Constitution also adopted a national policy 29 requiring full public disclosure of all state transactions involving public interest. Any rule which will defeat this policy on transparency ought to be disfavored. And to implement these policies, this Court was given the power to pry open and to strike down any act of any branch or instrumentality of government if it amounts to grave abuse of discretion amounting to lack or excess of jurisdiction. It is time to bury the enrolled bill for its fction of conclusiveness shuts off truth in many litigations. We cannot dispense justice based on fction for the search for justice is the search for truth . I submit that giving an enrolled bill a mere prima facie presumption of correctness will facilitate our task of dispensing justice based on truth. III In sum, I respectfully submit that the Court has jurisdiction over the petition at bar and that issues posed by petitioner are justiciable. Nonetheless, I do not fnd any grave abuse of discretion committed by the public respondents to justify granting said petition. As the ponencia points out, the petition merely involves the complaint that petitioner was prevented from raising the question of quorum. The petition does not concern violation of any rule mandated by the Constitution. Nor does it involve the right of a non-member of the House which requires constitutional protection. The rules on how to question the existence of a quorum are procedural in character. They are malleable by nature for they were drafted to help the House enact laws. As well stated, these rules are servants, not masters of the House. Their observance or non-observance is a matter of judgment call on the part of our legislators and it is not the business of the Court to reverse this judgment when untainted by grave abuse of discretion amounting to lack or excess of jurisdiction. Davide, Jr., J., concurs.

Separate Opinions VITUG, J., concurring: When the 1987 Constitution has embodied, in its circumscription of judicial power under Section 1, Article VIII, of the Constitution, the determination of whether or not there is grave abuse of discretion on the part of any branch or instrumentality of government, the Supreme Court, upon which that great burden has been imposed, could not have been thought of as likewise being thereby tasked with the awesome responsibility of overseeing the entire bureaucracy. The term grave abuse of discretion has long been understood in our jurisprudence as, and confned to, a capricious and whimsical or despotic exercise of judgment as amounting to lack or excess of jurisdiction. I see nothing of that sort in the case at bar. Absent a clear case of grave abuse of discretion, like the patent disregard of a Constitutional proscription, I would respect the judgment of Congress under whose province the

specifc responsibility falls and the authority to act is vested. To do otherwise would be an unwarranted intrusion into the internal affairs of a co-equal, independent and coordinate branch of government. At no time, it would seem to me, has it been intended by the framers of the fundamental law to cause a substantial deviation, let alone departure, from the time-honored and accepted principle of separation, but balanced, powers of the three branches of government. There is, of course, a basic variant between the old rule and the new Charter on the understanding of the term "judicial power." Now, the Court is under mandate to assume jurisdiction over, and to undertake judicial inquiry into, what may even be deemed to be political questions provided, however, that grave abuse of discretion the sole test of justiciability on purely political issues is shown to have attended the contested act. All taken, I most humbly reiterate my separate opinion in Tolentino vs. Secretary of Finance and companion cases (G.R. No. 115455, etc., 235 SCRA 630) and vote to deny the instant petition. ROMERO, J., separate opinion: In fling this separate opinion for the dismissal of the instant petition, I am not backtracking from the dissent which I expressed in Tolentino v. Secretary of Finance. 1 I am somewhat bothered that if I do not elaborate, the vote which I cast today might be wrongly construed as an implied abandonment of, and inconsistent with, my frm stance in Tolentino. The landmark case of Tolentino, just like the one under consideration, involved a similar challenge to the constitutionality of a signifcant tax measure namely, Republic Act No. 7716, otherwise known as the Expanded Value-Added Tax (EVAT) Law. There, a number of issues, both substantive and procedural, were posed by petitioners, each of which was discussed by the majority opinion of Mr. Justice Vicente V. Mendoza who, incidentally, is also the ponente of instant decision. At any rate, it is worth noting that I did not entirely disagree with each and every argument of the opinion, most especially those touching upon substantive issues. My main objection in Tolentino, it will be recalled, focused instead on what I perceived was a substantial breach and disregard by the Legislature of vital constitutional requirements ordaining the procedures to be followed in the passage of a bill which, in my opinion, the majority seemed to have cavalierly put to rest by hiding under the cloak of the enrolled bill theory 2 and the precept that the Court is not the proper forum for the enforcement of internal legislative rules allegedly violated. 3 To me, the position then taken by the majority exhibited blind adherence to otherwise sound principles of law which did not, however, ft the facts as presented before the Court. Hence, I objected, not so much because I found these principles unwise or obsolete, but rather because they were applied, or misapplied, to a case which I believe did not call for their application. When I differed from the majority opinion which applied the enrolled bill theory, I was very careful to emphasize that reliance thereon is not to be discontinued but that its application must be limited to minor matters relating more to form and factual issues which do not materially alter the essence and substance of the law itself. Thus: 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 certifcation, 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. 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. 4 As regards the principle that the Court is not the proper forum for the enforcement of internal legislative rules, both the majority and I were actually of one mind such that I was quick to qualify the extent of the Court's review power in respect of internal procedures in this wise: I wish to consider this issue in light of Article VIII, Sec. 1 of the Constitution which provides that "(j)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. 5 I differed, however, from the majority insofar as that principle was applied. In this respect, I showed that the introduction of several provisions in the Bicameral Conference Committee Report did not only violate the pertinent House and Senate Rules defning the limited power of the conference committee but that the Constitutional proscription against any amendment upon the last reading of a bill was likewise breached. Hence, in view of these lapses, I thought that judicial review would have been proper in order to uphold the Constitution. This the majority, however, disregarded invoking the same principle which should have justifed the Court in questioning the actuations of the legislative branch. At this juncture, I wish to reiterate my continuing adherence to the aforesaid reasons I cited in the Tolentino dissent. At the same time, I realize that the arguments I raised in my dissent would not hold true in the instant petition. For one thing, unlike in Tolentino, the rules of the House of Representatives allegedly violated by respondents in the instant petition are purely internal rules designed for the orderly conduct of the House's business. They have no direct or reasonable nexus to the requirements and proscriptions of the Constitution in the passage of a bill which would otherwise warrant the Court's intervention. Likewise, the petitioners are not in any way complaining that substantial alterations have been introduced in Republic Act No. 8240. The thrust of petitioners' arguments in attacking the validity of the law is merely with respect to the fact that Rep. Joker Arroyo was effectively prevented from invoking the question of quorum and not that the substance thereof offends constitutional standards. This being the case, I do not now feel called upon to invoke my previous argument that the enrolled bill theory should not be conclusive as regards "substantive changes in a bill introduced towards the end of its tortuous trip through Congress," when it is palpably unwarranted under the circumstances of instant petition. PUNO, J., concurring and dissenting: I concur in the result. I do appreciate the fne legal disquisition of Mr. Justice Mendoza to justify the dismissal of the case at bar. Nevertheless, I have to express my views on the alleged non-justiciability of the issue posed by the petitioner as well as the applicability of the archaic enroll bill doctrine in light of what I perceive as new wrinkles in our law brought about by the 1987 Constitution and the winds of changing time. I With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I agree that we will trivialize the principle of separation of power if we assume jurisdiction over the case at bar. Even in the United States, the principle of separation of power is no longer an impregnable impediment against the interposition of judicial power on cases involving breach of rules of procedure by legislators. Rightly, the ponencia uses the 1891 case of US v. Ballin, 1 as a window to view the issues before the Court. It is in Ballin where the US Supreme Court frst defned the boundaries of the power of the judiciary to review congressional rules. 2 It held: xxx xxx xxx The Constitution, in the same section, provides, that "each house may determine the rules of its proceedings." It

appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules: Rule XV 3. On the demand of any member, or at the suggestion of the Speaker, the names of members suffcient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. Ballin, clearly confrmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e., whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its method has a reasonable relationship with the result sought to be attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation of powers. Ballin was followed in 1932 by the case of US v. Smith. 3 In Smith, the meaning of sections 3 and 4 of Rule XXXVIII of the US Senate was in issue, viz: xxx xxx xxx 3. When a nomination is confrmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate; but if a notifcation of the confrmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notifcation to the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a fnal disposition of such motion. 4. Nominations confrmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise ordered by the Senate. It appears that the nomination of Mr. Smith as member of the Federal Power Commission has been confrmed by the US Senate. The resolution of confrmation was sent to the US President who then signed the appointment of Mr. Smith. The Senate, however, reconsidered the confrmation of Mr. Smith and requested the President to return its resolution of confrmation. The President refused. A petition for quo warranto was fled against Mr. Smith. The Court, speaking thru Mr. Justice Brandeis, assumed jurisdiction over the dispute relying on Ballin. It exercised jurisdiction although "the question primarily at issue relates to the construction of the applicable rules, not to their constitutionality." Signifcantly, the Court rejected the Senate interpretation of its own rules even while it held that it must be accorded the most sympathetic consideration. xxx xxx xxx Sixth. To place upon the standing rules of the Senate a construction different from that adopted by the Senate

itself when the present case was under debate is a serious and delicate exercise of judicial power. The Constitution commits to the Senate the power to make its own rules; and it is not the function of the Court to say that another rule would be better. A rule designed to ensure due deliberation in the performance of the vital function of advising and consenting to nominations for public offce, moreover, should receive from the Court the most sympathetic consideration. But the reasons, above stated, against the Senate's construction seem to us compelling. We are confrmed in the view we have taken by the fact, since the attempted reconsideration of Smith's confrmation, the Senate itself seems uniformly to have treated the ordering of immediate notifcation to the President as tantamount to authorizing him to proceed to perfect the appointment. Smith, of course, involves the right of a third person and its ruling falls within the test spelled out in Ballin. Smith was followed by the 1948 case of Christoffel v. United States. 4 Christoffel testifed before the Committee on Education and Labor of the House of Representatives. He denied he was a communist and was charged with perjury in the regular court. He adduced evidence during the trial that the committee had no quorum when the perjurious statement was given. Nonetheless, he was convicted in view of the judge's charge to the members of the jury that to fnd Christoffel guilty, they had to fnd beyond a reasonable doubt that xxx xxx xxx . . . the defendant Christoffel appeared before a quorum of at least thirteen members of the said Committee, and that "at least that number must have been actually and physically present . . . If such a Committee so met, that is, if thirteen members did meet at the beginning of the afternoon session of March 1, 1947, and thereafter during the progress of the hearing some of them left temporarily or otherwise and no question was raised as to the lack of a quorum, then the fact that the majority did not remain there would not affect, for the purposes of this case, the existence of that Committee as a competent tribunal provided that before the oath was administered and before the testimony of the defendant was given there were present as many as 13 members of that Committee at the beginning of the afternoon session . . . . Christoffel objected to the charge on the ground that it allowed the jury to assume there was a continuous quorum simply because it was present at the start of the meeting of the Committee. Under the House rules, a quorum once established is presumed to continue until the lack of quorum is raised. Again, the court assumed jurisdiction over the case. A majority of the Court, with Mr. Justice Murphy, as ponente, defned the issue as "what rules the House had established and whether they have been followed." It held: xxx xxx xxx Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us. The question is neither what rules Congress may establish for its own governance, nor whether presumptions of continuity may protect the validity of its legislative conduct. The question is rather what rules the House has established and whether they have been followed. It of course has the power to defne what tribunal is competent to exact testimony and the conditions that establish its competency to do so. The heart of this case is that by the charge that was given it the jury was allowed to assume that the conditions of competency were satisfed even though the basis in fact was not established and in face of a possible fnding that the facts contradicted the assumption. We are measuring a conviction of crime by the statute which defned it. As a consequence of this conviction, petitioner was sentenced to imprisonment for a term of from two to six years. An essential part of a procedure which can be said fairly to infict such a punishment is that all the elements of the crime charged shall be proved beyond a reasonable doubt. An element of the crime charged in the instant indictment is the presence of a competent tribunal, and the trial court properly so instructed the jury. The House insists that to be such a tribunal a committee must consist of a quorum, and we agree with the trial court's charge that to convict, the jury had to be satisfed beyond a reasonable doubt that there were "actually and physically present" a majority of the committee. Then to charge, however, that such requirement is satisfed by a fnding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed. This not only seems to us

contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all the elements of the crime charged against him. A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction. The minority complained that the "House has adopted the rule and practice that a quorum once established is presumed to continue unless and until a point of no quorum is raised. By this decision, the Court, in effect, invalidates that rule . . . ." The minority view commanded only the vote of three (3) justices. The US Supreme Court pursued the same line in 1963 in deciding the case of Yellin v. United States. 5 Yellin was indicted on fve counts of willfully refusing to answer questions put to him by a sub-committee of the House Committee on Un-American Activities. He was convicted by the District Court of contempt of Congress on four counts. The conviction was affrmed by the Court of Appeals for the 7th Circuit. On certiorari, he assailed his conviction on the ground that the Committee illegally denied his request to be heard in executive session . He alleged there was a violation of Committee Rule IV which provides that "if a majority of the Committee or sub-committee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or admissibility of conducting such interrogation thereafter in a public hearing." in a 5-4 decision, the Court, speaking thru Mr. Chief Justice Warren, held: xxx xxx xxx Yellin should be permitted the same opportunity for judicial review when he discovers at trial that his rights have been violated. This is especially so when the Committee's practice leads witnesses to misplaced reliance upon its rules. When reading a copy of the Committee's rules, which must be distributed to every witness under Rule XVII, the witness' reasonable expectation is that the Committee actually does what it purports to do, adhere to its own rules. To foreclose a defense based upon those rules, simply because the witness was deceived by the Committee's appearance of regularity, is not fair. The Committee prepared the groundwork for prosecution in Yellin's case meticulously. It is not too exacting to require that the Committee be equally meticulous in obeying its own rules. It additionally bears stressing that in the United States, the judiciary has pruned the "political thicket." In the benchmark case of Baker v. Carr, 6 the US Supreme Court assumed jurisdiction to hear a petition for reapportionment of the Tennessee legislature ruling that "the political question doctrine, a tool for maintenance of government order, will not be so applied as to promote only disorder" and that "the courts cannot reject as 'no law suit,' a bona fde controversy as to whether some action denominated 'political' exceeds constitutional authority." In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts ". . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis-a-vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety that the government can no longer invoke the political question defense. Section 18 of Article VII completely eliminated this defense when it provided: xxx xxx xxx The Supreme Court may review, in an appropriate proceeding fled by any citizen, the suffciency of the factual basis 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 fling.

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 CONCOM did not only outlaw the use of the political question defense in national security cases. To a great degree, it diminished its use as a shield to protect other abuses of government by allowing courts to penetrate the shield with the new power to review acts of any branch or instrumentality of the government ". . . to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction." In Tolentino v. Secretary of Finance, 7 I posited the following postulates: xxx xxx xxx 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. 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: xxx xxx xxx . . . In other words, the judiciary is the fnal arbiter on the question of whether or not a branch of government or any of its offcials 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. 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 offcials 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. I beg to disagree for the view misses the signifcant changes made in our constitutional canvass to cure the legal defciencies 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." It also guaranteed fscal autonomy to the Judiciary. 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. The power of confrming appointments to the judiciary was also taken away from Congress. The President was likewise given a specifc time to fll up vacancies in the judiciary ninety (90) days from the occurrence of the vacancy in case of the Supreme Court and ninety (90) days from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower courts. To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the power to "appoint all offcials and employees of the Judiciary in accordance with the Civil Service Law." And to make the separation of the judiciary from the other branches of government more watertight, it prohibited members of the judiciary to be ". . . designated to any agency performing quasi judicial or administrative functions." While the Constitution strengthened the sinews of the Supreme Court, it reduced

the powers of the two other branches of government, especially the Executive. Notable of the 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 suffciency of the factual basis for the exercise of said power may be reviewed by this Court in an appropriate proceeding fled by any citizen. The provision defning 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 provisionwas dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. . . . xxx xxx xxx In sum, I submit that in imposing to this Court the duty to annul 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 fnding out what it should not do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifes the present. I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to defne the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheath the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino, 8 I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons of our own history should provide us the light and not the experience of foreigners. II Again with due respect, I dissent from the majority insofar as it relied on the enrolled bill doctrine to justify the dismissal of the petition at bar. An enrolled bill is one which has been duly introduced, fnally enacted by both Houses, signed by the proper offcers of each House and approved by the President. 9 It is a declaration by the two Houses, through their presiding offcers, to the President that a bill, thus attested, has received in due 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. The enrolled bill originated in England where there is no written Constitution controlling the legislative branch of the government, and the acts of Parliament, being regarded in their nature as judicial as emanating from the highest tribunal in the land are placed on the same footing and regarded with the same veneration as the judgment of the courts which cannot be collaterally attacked. 10 In England, the conclusiveness of the bill was premised on the rationale that "an ad of parliament thus made is the exercise of the highest authority that this kingdom acknowledges upon earth. And it cannot be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of parliament; for it is a maxim in law that it requires the same strength to dissolve as to create an obligation. 11 Over the years, the enrolled bill theory has undergone important mutations. Some jurisdictions have adopted the modifed entry or affrmative contradiction rule. Under this rule, the presumption in favor of the enrolled bill is not conclusive. The rule concedes validity to the enrolled bill unless there affrmatively appears in the journals of the legislature a statement that there has not been compliance with one or more of the constitutional requirements. 12

Other jurisdictions have adopted the Extrinsic Evidence Rule which holds that an enrolled bill is only prima facie evidence that it has been regularly enacted. The prima facie presumption, however, can be destroyed by clear, satisfactory and convincing evidence that the constitutional requirements in enacting a law have been violated. For this purpose, journals and other extrinsic evidence are allowed to be received. 13 Some limit the use of extrinsic evidence to issues of fraud or mistakes. 14 These variants developed after a re-examination of the rationale of the enrolled bill. The modern rationale for the enrolled bill theory was spelled out in Field v. Clark, 15 viz.: xxx xxx xxx The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in open session, of an enrolled bill, is an offcial attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two Houses, through their presiding offcers, 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 offcial 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 the 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. The principle of separation of powers is thus the principal prop of the enrolled bill doctrine. The doctrine is also justifed as a rule of convenience. Supposedly, it avoids diffcult questions of evidence. 16 It is also believed that it will prevent the fling of too many cases which will cast a cloud of uncertainty on laws passed by the legislature. As explained in Ex Pacte Wren 17 "if the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, diffculty, and painful uncertainty appalling in its contemplation, and multiplying a hundredfold the alleged uncertainty of the law." The conclusiveness of the enrolled bill is also justifed on the ground that journals and other extrinsic evidence are conducive to mistake, if not fraud. These justifcations for the enrolled bill theory have been rejected in various jurisdictions in the United States. In his Dissenting Opinion in Tolentino v. Secretary of Finance, and its companion cases, 18 Mr. Justice Regalado cited some of the leading American cases which discussed the reasons for the withering, if not demise of the enrolled bill theory, viz: xxx xxx xxx Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that doctrine has long been revisited and qualifed, 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 fxed by the Constitution of which journals of respective houses of Legislature are required to furnish the evidence. In fact, in Gwynn vs. Hardee, etc., et al., the Supreme Court of Florida declared (1) While the presumption is that the enrolled bill, as signed by the legislative offces and fled 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 offcers, 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 frmly 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., pertinent excerpts wherefrom are extensively reproduced hereunder. . . . In arriving at our decision we must, perforce, reconsider the validity of a long line of decisions of this court which created and nurtured 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 fnal 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 certifed by the appropriate offcers, 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 fnal 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 fnal act, the enrolled bill, be given effcacy. (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 criticism as follows: (1) Artifcial 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 to disturb settled points of law. Yet, this rule is not infexible, 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). 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 diffculties and complexities should not deter this pursuit and we reject any doctrine or presumption that so provides. Lastly, we address the premise that the equality of the various branches of government requires that we shut our eyes to constitutional failing and other errors of our copartners in government. We simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the constitution is "void." The proper exercise of judicial authority requires us to recognize any law which is unconstitutional and to declare it void. Without elaborating the point, we believe that under section 228 of the Kentucky Constitution it is our obligation to "support . . . the Constitution of the commonwealth." We are sworn to see that violations of the constitution by any person, corporation, state agency or branch or government are brought to light and corrected. To countenance an artifcial 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." . . . . 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. . . . Clearly, the enrolled bill doctrine no longer enjoys its once unassailable respectability in United States. Sutherland reveals that starting in the 1940's,". . . the tendency seems to be toward the abandonment of the conclusive presumption rule and the adoption of the third rule leaving only a prima facie presumption of validity which may be attacked by any authoritative source of information." 19 It is high time we re-examine our preference for the enrolled bill doctrine. It was in the 1947 case of Mabanag v. Lopez Vito, 20 that this Court, with three (3) justices dissenting, frst embraced the rule that a duly authenticated bill or resolution imports absolute verity and is binding on the courts. In 1963, we frmed up this ruling in Casco Philippine Chemical Co. v. Gimenez, 21 thus: xxx xxx xxx Hence, "urea formaldehyde" is clearly a fnished product which is patently distinct and different from "urea" and "formaldehyde," as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde." Petitioner contends, however, that the bill approved in Congress contained the copulative conjunction "and" between the term "urea" and "formaldehyde," and that the members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements in the manufacture of the synthetic resin glue called "urea formaldehyde," not the latter as a fnished product, citing in support of this view the statements made on the foor of the Senate, during the consideration of the bill before said House, by members thereof. But said individual statements do not necessarily refect the view of the Senate. Much less do they indicate the intent of the House of Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off Gaz. 615; Mayor Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. vs. Games and Amusement Board, L-12727 [February 19, 1960]). Furthermore, it is well settled

that enrolled bill which uses the term "urea formaldehyde" instead of "urea and formaldehyde" conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L18684, Sept. 14, 1961). If there has been any mistake in the printing of the bill before it was certifed by the offcers of Congress and approved by the Executive on which we cannot speculate without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system the remedy is by amendment or curative legislation, not by judicial decree. In the 1969 case of Morales v. Subido, 22 we reiterated our fdelity to the enrolled bill doctrine, viz: . . . . We cannot go behind the enrolled Act to discover what really happened. The respect due to the other branches of the Government demands that we act upon the faith and credit of what the offcers of the said branches attest to as the offcial acts of their respective departments. Otherwise we would be cast in the unenviable and unwanted role of a sleuth trying to determine what actually did happen in the labyrinth of lawmaking, with consequent impairment of the integrity of the legislative process. The investigation which the petitioner would like this Court to make can be better done in Congress. After all, House cleaning the immediate and imperative need for which seems to be suggested by the petitioner can best be effected by the occupants thereof. Expressed elsewise, this is a matter worthy of the attention not of an Oliver Wendell Holmes but of a Sherlock Holmes. Signifcantly, however, Morales diluted the conclusiveness rule of the enrolled bill doctrine. The ponencia stressed: By what we have essayed above we are not of course to be understood as holding that in all cases the journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution 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. 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. In the 1974 case of Astorga v. Villegas, 23 we further diluted the enrolled bill doctrine when we refused to apply it after the Senate President declared his signature on the bill as invalid. We ruled: xxx xxx xxx Petitioner's argument that the attestation of the presiding offces of Congress is conclusive proof of a bill's due enactment, required, it is said, by the respect due to a co-equal department of the government, is neutralized in this case by the fact that the Senate President declared his signature on the bill to be invalid and issued a subsequent clarifcation that the invalidation for his signature meant that the bill he had signed had never been approved by the Senate. Obviously this declaration should be accorded even greater respect than the attestation it invalidated, which it did for a reason that is undisputed in fact and indisputable in logic. As far as Congress itself is concerned, there is nothing sacrosanct in the certifcation made by the presiding offcers. It is merely a mode of authentication. The law-making process in Congress ends when the bill is approved by both Houses, and the certifcation 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 by Congress and not the signatures of the presiding offcers 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 is the fnal passage and it follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding offcer, the proof that it has 'passed both houses' will satisfy the constitutional requirement. Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the Senate President, granting it to have been validly made, would only mean that there was no attestation at all, but would not affect the validity of the statute. Hence, it is pointed out, Republic Act No. 4065 would remain valid and binding. This argument begs the issue. It would limit the court's inquiry to the presence or absence of the attestation and to the effect of its absence upon the validity of the statute. The inquiry, however, goes farther. Absent such attestation as a result of the disclaimer, and consequently there being no enrolled bill to speak of, what evidence is there to determine whether or not the bill had been duly enacted. In such a case the entries in

the journal should be consulted. The journal of the proceedings of each House of Congress is no ordinary record. The Constitution requires it. While it is true that the journal is not authenticated and is subject to the risk of misprinting and other errors, the point is irrelevant in this case. This Court is merely asked to inquire whether the text of House Bill No. 9266 signed by the Chief Executive was the same text passed by both Houses of Congress. Under the specifc facts and circumstances of this case, this Court can do this and resort to the Senate journal for the purpose. The journal discloses that substantial and lengthy amendments were introduced on the foor and approved by the Senate but were not incorporated in the printed text sent to the President and signed by him. This Court is not asked to incorporate such amendments into the alleged law, which admittedly is a risky undertaking, but to declare that the bill was not duly enacted and therefore did not become law. This We do, as indeed both the President of the Senate and the Chief Executive did, when they withdrew their signatures therein. In the face of the manifest error committed and subsequently rectifed by the President of the Senate and by the Chief Executive, for this Court to perpetuate that error by disregarding such rectifcation and holding that the erroneous bill has become law would be to sacrifce truth to fction and bring about mischievous consequences not intended by the law-making body. In 1993, the enrolled bill doctrine was again used as a secondary rationale in the case of Philippine Judges Association v. Prado, 24 In this case, the judges claimed that the pertinent part of section 35 of R.A. No. 7354 repealing the franking privilege of the judiciary appeared only in the Conference Committee Report. In rejecting this contention, this Court ruled: While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is 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). 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 certifcation 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 certifcation of the approval of a bill from the presiding offcers 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 fnal reading of the bill). The journals are themselves also binding on the Supreme Court, as we held in the old (but stills valid) case of U.S. vs. Pens, 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 fnal 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 the Article VI, Sec. 26(2) of the Constitution. We are bound by such offcial assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. Finally in 1994 came the case of Tolentino v. Secretary of Finance, et al and its companion cases. 25 Involved in the

case was the constitutionality of R.A. No. 7716, otherwise known as the Expanded Value Added Tax Law. The majority 26 partly relied on the enrolled bill doctrine in dismissing challenges to the constitutionality of R.A. No. 7716. It held: xxx xxx xxx Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases manifest frm 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 or that certain provisions of a statute had been "smuggled" in the printing of the bill 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 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 fad 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. These cases show that we have not blindly accepted the conclusiveness of the enrolled bill. Even in Tolentino, Mr. Justice Mendoza was cautious enough to hold that "no claim is here made that the enrolled bill is absolute." I respectfully submit that it is now time for the Court to make a defnitive pronouncement that we no longer give our unqualifed support to the enrolled bill doctrine. There are compelling reasons for this suggested change in stance. For one, the enrolled bill is appropriate only in England where it originated because in England there is no written Constitution and the Parliament is supreme. For another, many of the courts in the United States have broken away from the rigidity and unrealism of the enrolled bill in light of contemporary developments in lawmaking. 27 And more important, our uncritical adherence to the enrolled bill is inconsistent with our Constitution, laws and rules. In Mabanag, 28 we relied on section 313 of the Old Code of Civil Procedure as amended by Act No. 2210 as a principal reason in embracing the enrolled bill. This section, however has long been repealed by our Rules of Court. A half glance at our Rules will show that its section on conclusive presumption does not carry the conclusive presumption we give to an enrolled bill. But this is not all. The conclusiveness of an enrolled bill which all too often results in the suppression of truth cannot be justifed under the 1987 Constitution. The Preamble of our Constitution demands that we live not only under a rule of law but also under a regime of truth. Our Constitution also adopted a national policy 29 requiring full public disclosure of all state transactions involving public interest. Any rule which will defeat this policy on transparency ought to be disfavored. And to implement these policies, this Court was given the power to pry open and to strike down any act of any branch or instrumentality of government if it amounts to grave abuse of discretion amounting to lack or excess of jurisdiction. It is time to bury the enrolled bill for its fction of conclusiveness shuts off truth in many litigations. We cannot dispense justice based on fction for the search for justice is the search for truth . I submit that giving an enrolled bill a mere prima facie presumption of correctness will facilitate our task of dispensing justice based on truth. III In sum, I respectfully submit that the Court has jurisdiction over the petition at bar and that issues posed by petitioner are justiciable. Nonetheless, I do not fnd any grave abuse of discretion committed by the public respondents to justify granting said petition. As the ponencia points out, the petition merely involves the complaint that petitioner was prevented from raising the question of quorum. The petition does not concern violation of any rule mandated by the Constitution. Nor does it involve the right of a non-member of the House which requires constitutional protection. The rules on how to question the existence of a quorum are procedural in character. They are malleable by nature for they were drafted to help the House enact laws. As well stated, these rules are servants, not masters of the House. Their observance or non-observance is a matter of judgment call on the part of our legislators and it is not the business of the Court to reverse this judgment when untainted by grave abuse of discretion amounting to lack or excess of jurisdiction.

Davide, Jr., J., concurs.

EN BANC [G.R. No. 152774. May 27, 2004]

THE PROVINCE OF BATANGAS, represented by its Governor, HERMILANDO I. MANDANAS, petitioner, vs. HON. ALBERTO G. ROMULO, Executive Secretary and Chairman of the Oversight Committee on Devolution; HON. EMILIA BONCODIN, Secretary, Department of Budget and Management; HON. JOSE D. LINA, JR., Secretary, Department of Interior and Local Government, respondents. DECISION CALLEJO, SR., J.: The Province of Batangas, represented by its Governor, Hermilando I. Mandanas, fled the present petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, as amended, to declare as unconstitutional and void certain provisos contained in the General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly earmarked for each corresponding year the amount of fve billion pesos (P5,000,000,000.00) of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release thereof. Named as respondents are Executive Secretary Alberto G. Romulo, in his capacity as Chairman of the Oversight Committee on Devolution, Secretary Emilia Boncodin of the Department of Budget and Management (DBM) and Secretary Jose Lina of the Department of Interior and Local Government (DILG). Background

On December 7, 1998, then President Joseph Ejercito Estrada issued Executive Order (E.O.) No. 48 entitled ESTABLISHING A PROGRAM FOR DEVOLUTION ADJUSTMENT AND EQUALIZATION. The program was established to facilitate the process of enhancing the capacities of local government units (LGUs) in the discharge of the functions and services devolved to them by the National Government Agencies concerned pursuant to the Local Government Code.[1] The Oversight Committee (referred to as the Devolution Committee in E.O. No. 48) constituted under Section 533(b) of Republic Act No. 7160 (The Local Government Code of 1991) has been tasked to formulate and issue the appropriate rules and regulations necessary for its effective implementation.[2] Further, to address the funding shortfalls of functions and services devolved to the LGUs and other funding requirements of the program, the Devolution Adjustment and Equalization Fund was created.[3] For 1998, the DBM was directed to set aside an amount to be determined by the Oversight Committee based on the devolution status appraisal surveys undertaken by the DILG.[4] The initial fund was to be sourced from the available savings of the national government for CY 1998.[5] For 1999 and the succeeding years, the corresponding amount required to sustain the program was to be incorporated in the annual GAA. [6] The Oversight Committee has been authorized to issue the implementing rules and regulations governing the equitable allocation and distribution of said fund to the LGUs.[7] The LGSEF in the GAA of 1999

In Republic Act No. 8745, otherwise known as the GAA of 1999, the program was renamed as the LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF). Under said appropriations law, the amount of P96,780,000,000 was allotted as the share of the LGUs in the internal revenue taxes. Item No. 1, Special Provisions, Title XXXVI A. Internal Revenue Allotment of Rep. Act No. 8745 contained the following proviso: ... PROVIDED, That the amount of FIVE BILLION PESOS (P5,000,000,000) shall be earmarked for the Local Government Service Equalization Fund for the funding requirements of projects and activities arising from the full and effcient implementation of devolved functions and services of local government units pursuant to R.A. No. 7160, otherwise known as the Local Government Code of 1991: PROVIDED, FURTHER, That such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government

units subject to the guidelines that may be prescribed by the Oversight Committee on Devolution as constituted pursuant to Book IV, Title III, Section 533(b) of R.A. No. 7160. The Internal Revenue Allotment shall be released directly by the Department of Budget and Management to the Local Government Units concerned. On July 28, 1999, the Oversight Committee (with then Executive Secretary Ronaldo B. Zamora as Chairman) passed Resolution Nos. OCD-99-003, OCD-99-005 and OCD-99-006 entitled as follows: OCD-99-005 RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP5 BILLION CY 1999 LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF) AND REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO APPROVE SAID ALLOCATION SCHEME. OCD-99-006 RESOLUTION ADOPTING THE ALLOCATION SCHEME FOR THE PhP4.0 BILLION OF THE 1999 LOCAL GOVERNMENT SERVICE EQUALIZATION FUND AND ITS CONCOMITANT GENERAL FRAMEWORK, IMPLEMENTING GUIDELINES AND MECHANICS FOR ITS IMPLEMENTATION AND RELEASE, AS PROMULGATED BY THE OVERSIGHT COMMITTEE ON DEVOLUTION. OCD-99-003 RESOLUTION REQUESTING HIS EXCELLENCY PRESIDENT JOSEPH EJERCITO ESTRADA TO APPROVE THE REQUEST OF THE OVERSIGHT COMMITTEE ON DEVOLUTION TO SET ASIDE TWENTY PERCENT (20%) OF THE LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF) FOR LOCAL AFFIRMATIVE ACTION PROJECTS AND OTHER PRIORITY INITIATIVES FOR LGUs INSTITUTIONAL AND CAPABILITY BUILDING IN ACCORDANCE WITH THE IMPLEMENTING GUIDELINES AND MECHANICS AS PROMULGATED BY THE COMMITTEE. These OCD resolutions were approved by then President Estrada on October 6, 1999. Under the allocation scheme adopted pursuant to Resolution No. OCD-99-005, the fve billion pesos LGSEF was to be allocated as follows: 1. The PhP4 Billion of the LGSEF shall be allocated in accordance with the allocation scheme and implementing guidelines and mechanics promulgated and adopted by the OCD. To wit: a. The frst PhP2 Billion of the LGSEF shall be allocated in accordance with the codal formula sharing scheme as prescribed under the 1991 Local Government Code; b. The second PhP2 Billion of the LGSEF shall be allocated in accordance with a modifed 1992 cost of devolution fund (CODEF) sharing scheme, as recommended by the respective leagues of provinces, cities and municipalities to the OCD. The modifed CODEF sharing formula is as follows: Province : 40% Cities : 20% Municipalities : 40% This is applied to the P2 Billion after the approved amounts granted to individual provinces, cities and municipalities as assistance to cover decrease in 1999 IRA share due to reduction in land area have been taken out. 2. The remaining PhP1 Billion of the LGSEF shall be earmarked to support local affrmative action projects and other priority initiatives submitted by LGUs to the Oversight Committee on Devolution for approval in accordance with its prescribed guidelines as promulgated and

adopted by the OCD. In Resolution No. OCD-99-003, the Oversight Committee set aside the one billion pesos or 20% of the LGSEF to support Local Affrmative Action Projects (LAAPs) of LGUs. This remaining amount was intended to respond to the urgent need for additional funds assistance, otherwise not available within the parameters of other existing fund sources. For LGUs to be eligible for funding under the one-billion-peso portion of the LGSEF, the OCD promulgated the following: III. CRITERIA FOR ELIGIBILITY: 1. LGUs (province, city, municipality, or barangay), individually or by group or multi-LGUs or leagues of LGUs, especially those belonging to the 5th and 6th class, may access the fund to support any projects or activities that satisfy any of the aforecited purposes. A barangay may also access this fund directly or through their respective municipality or city. 2. The proposed project/activity should be need-based, a local priority, with high development impact and are congruent with the socio-cultural, economic and development agenda of the Estrada Administration, such as food security, poverty alleviation, electrifcation, and peace and order, among others. 3. Eligible for funding under this fund are projects arising from, but not limited to, the following areas of concern: a. delivery of local health and sanitation services, hospital services and other tertiary services; b. delivery of social welfare services; c. provision of socio-cultural services and facilities for youth and community development; d. provision of agricultural and on-site related research; e. improvement of community-based forestry projects and other local projects on environment and natural resources protection and conservation; f. improvement of tourism facilities and promotion of tourism; g. peace and order and public safety; h. construction, repair and maintenance of public works and infrastructure, including public buildings and facilities for public use, especially those destroyed or damaged by man-made or natural calamities and disaster as well as facilities for water supply, food control and river dikes; i. provision of local electrifcation facilities; j. livelihood and food production services, facilities and equipment; k. other projects that may be authorized by the OCD consistent with the aforementioned objectives and guidelines; 4. Except on extremely meritorious cases, as may be determined by the Oversight Committee on Devolution, this portion of the LGSEF shall not be used in expenditures for personal costs or benefts under existing laws applicable to governments. Generally, this fund shall cover

the following objects of expenditures for programs, projects and activities arising from the implementation of devolved and regular functions and services: a. acquisition/procurement of supplies and materials critical to the full and effective implementation of devolved programs, projects and activities; b. repair and/or improvement of facilities; c. repair and/or upgrading of equipment; d. acquisition of basic equipment; e. construction of additional or new facilities; f. counterpart contribution to joint arrangements or collective projects among groups of municipalities, cities and/or provinces related to devolution and delivery of basic services. 5. To be eligible for funding, an LGU or group of LGU shall submit to the Oversight Committee on Devolution through the Department of Interior and Local Governments, within the prescribed schedule and timeframe, a Letter Request for Funding Support from the Affrmative Action Program under the LGSEF, duly signed by the concerned LGU(s) and endorsed by cooperators and/or benefciaries, as well as the duly signed Resolution of Endorsement by the respective Sanggunian(s) of the LGUs concerned. The LGU-proponent shall also be required to submit the Project Request (PR), using OCD Project Request Form No. 99-02, that details the following: (a) general description or brief of the project; (b) objectives and justifcations for undertaking the project, which should highlight the benefts to the locality and the expected impact to the local program/project arising from the full and effcient implementation of social services and facilities, at the local levels; (c) target outputs or key result areas; (d) schedule of activities and details of requirements; (e) total cost requirement of the project; (f) proponents counterpart funding share, if any, and identifed source(s) of counterpart funds for the full implementation of the project; (g) requested amount of project cost to be covered by the LGSEF. Further, under the guidelines formulated by the Oversight Committee as contained in Attachment Resolution No. OCD-99-003, the LGUs were required to identify the projects eligible for funding under the onebillion-peso portion of the LGSEF and submit the project proposals thereof and other documentary requirements to the DILG for appraisal. The project proposals that passed the DILGs appraisal would then be submitted to the Oversight Committee for review, evaluation and approval. Upon its approval, the Oversight Committee would then serve notice to the DBM for the preparation of the Special Allotment Release Order (SARO) and Notice of Cash Allocation (NCA) to effect the release of funds to the said LGUs. The LGSEF in the GAA of 2000

Under Rep. Act No. 8760, otherwise known as the GAA of 2000, the amount of P111,778,000,000 was allotted as the share of the LGUs in the internal revenue taxes. As in the GAA of 1999, the GAA of 2000 contained a proviso earmarking fve billion pesos of the IRA for the LGSEF. This proviso, found in Item No. 1, Special Provisions, Title XXXVII A. Internal Revenue Allotment, was similarly worded as that contained in the GAA of 1999. The Oversight Committee, in its Resolution No. OCD-2000-023 dated June 22, 2000, adopted the following allocation scheme governing the fve billion pesos LGSEF for 2000: 1. The PhP3.5 Billion of the CY 2000 LGSEF shall be allocated to and shared by the four levels of LGUs, i.e., provinces, cities, municipalities, and barangays, using the following percentagesharing formula agreed upon and jointly endorsed by the various Leagues of LGUs: For Provinces 26% or P 910,000,000 For Cities 23% or 805,000,000 For Municipalities 35% or 1,225,000,000 For Barangays 16% or 560,000,000 Provided that the respective Leagues representing the provinces, cities, municipalities and barangays shall draw up and adopt the horizontal distribution/sharing schemes among the member LGUs whereby the Leagues concerned may opt to adopt direct fnancial assistance or project-based arrangement, such that the LGSEF allocation for individual LGU shall be released directly to the LGU concerned; Provided further that the individual LGSEF shares to LGUs are used in accordance with the general purposes and guidelines promulgated by the OCD for the implementation of the LGSEF at the local levels pursuant to Res. No. OCD-99-006 dated October 7, 1999 and pursuant to the Leagues guidelines and mechanism as approved by the OCD; Provided further that each of the Leagues shall submit to the OCD for its approval their respective allocation scheme, the list of LGUs with the corresponding LGSEF shares and the corresponding project categories if project-based; Provided further that upon approval by the OCD, the lists of LGUs shall be endorsed to the DBM as the basis for the preparation of the corresponding NCAs, SAROs, and related budget/release documents. 2. The remaining P1,500,000,000 of the CY 2000 LGSEF shall be earmarked to support the following initiatives and local affrmative action projects, to be endorsed to and approved by the Oversight Committee on Devolution in accordance with the OCD agreements, guidelines, procedures and documentary requirements: On July 5, 2000, then President Estrada issued a Memorandum authorizing then Executive Secretary Zamora and the DBM to implement and release the 2.5 billion pesos LGSEF for 2000 in accordance with Resolution No. OCD-2000-023. Thereafter, the Oversight Committee, now under the administration of President Gloria MacapagalArroyo, promulgated Resolution No. OCD-2001-29 entitled ADOPTING RESOLUTION NO. OCD-2000-023 IN THE ALLOCATION, IMPLEMENTATION AND RELEASE OF THE REMAINING P2.5 BILLION LGSEF FOR CY 2000. Under this resolution, the amount of one billion pesos of the LGSEF was to be released in accordance with paragraph 1 of Resolution No. OCD-2000-23, to complete the 3.5 billion pesos allocated to the LGUs, while the amount of 1.5 billion pesos was allocated for the LAAP. However, out of the latter amount, P400,000,000 was to be allocated and released as follows: P50,000,000 as fnancial assistance to the LAAPs of LGUs; P275,360,227 as fnancial assistance to cover the decrease in the IRA of LGUs concerned due to reduction in land area; and P74,639,773 for the LGSEF Capability-Building Fund. The LGSEF in the GAA of 2001

In view of the failure of Congress to enact the general appropriations law for 2001, the GAA of 2000 was deemed re-enacted, together with the IRA of the LGUs therein and the proviso earmarking fve billion pesos thereof for the LGSEF. On January 9, 2002, the Oversight Committee adopted Resolution No. OCD-2002-001 allocating the fve billion pesos LGSEF for 2001 as follows: Modifed Codal Formula P 3.000 billion Priority Projects 1.900 billion Capability Building Fund .100 billion P 5.000 billion RESOLVED FURTHER, that the P3.0 B of the CY 2001 LGSEF which is to be allocated according to the modifed codal formula shall be released to the four levels of LGUs, i.e., provinces, cities, municipalities and barangays, as follows: LGUs Provinces Cities 25 35 15 Percentage 25 Amount P 0.750 billion 0.750 1.050 0.450 100 P 3.000 billion RESOLVED FURTHER, that the P1.9 B earmarked for priority projects shall be distributed according to the following criteria: 1.0 For projects of the 4th, 5th and 6th class LGUs; or 2.0 Projects in consonance with the Presidents State of the Nation Address (SONA)/summit commitments. RESOLVED FURTHER, that the remaining P100 million LGSEF capability building fund shall be distributed in accordance with the recommendation of the Leagues of Provinces, Cities, Municipalities and Barangays, and approved by the OCD. Upon receipt of a copy of the above resolution, Gov. Mandanas wrote to the individual members of the Oversight Committee seeking the reconsideration of Resolution No. OCD-2002-001. He also wrote to Pres. Macapagal-Arroyo urging her to disapprove said resolution as it violates the Constitution and the Local Government Code of 1991. On January 25, 2002, Pres. Macapagal-Arroyo approved Resolution No. OCD-2002-001. The Petitioners Case

Municipalities Barangays

The petitioner now comes to this Court assailing as unconstitutional and void the provisos in the GAAs of 1999, 2000 and 2001, relating to the LGSEF. Similarly assailed are the Oversight Committees Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-2000-023, OCD-2001-029 and OCD-2002-001 issued pursuant thereto. The petitioner submits that the assailed provisos in the GAAs and the OCD resolutions, insofar as they earmarked the amount of fve billion pesos of the IRA of the LGUs for 1999, 2000 and 2001 for the LGSEF and imposed conditions for the release thereof, violate the Constitution and the Local Government Code of 1991.

Section 6, Article X of the Constitution is invoked as it mandates that the just share of the LGUs shall be automatically released to them. Sections 18 and 286 of the Local Government Code of 1991, which enjoin that the just share of the LGUs shall be automatically and directly released to them without need of further action are, likewise, cited. The petitioner posits that to subject the distribution and release of the fve-billion-peso portion of the IRA, classifed as the LGSEF, to compliance by the LGUs with the implementing rules and regulations, including the mechanisms and guidelines prescribed by the Oversight Committee, contravenes the explicit directive of the Constitution that the LGUs share in the national taxes shall be automatically released to them. The petitioner maintains that the use of the word shall must be given a compulsory meaning. To further buttress this argument, the petitioner contends that to vest the Oversight Committee with the authority to determine the distribution and release of the LGSEF, which is a part of the IRA of the LGUs, is an anathema to the principle of local autonomy as embodied in the Constitution and the Local Government Code of 1991. The petitioner cites as an example the experience in 2001 when the release of the LGSEF was long delayed because the Oversight Committee was not able to convene that year and no guidelines were issued therefor. Further, the possible disapproval by the Oversight Committee of the project proposals of the LGUs would result in the diminution of the latters share in the IRA. Another infringement alleged to be occasioned by the assailed OCD resolutions is the improper amendment to Section 285 of the Local Government Code of 1991 on the percentage sharing of the IRA among the LGUs. Said provision allocates the IRA as follows: Provinces 23%; Cities 23%; Municipalities 34%; and Barangays 20%.[8] This formula has been improperly amended or modifed, with respect to the fve-billionpeso portion of the IRA allotted for the LGSEF, by the assailed OCD resolutions as they invariably provided for a different sharing scheme. The modifcations allegedly constitute an illegal amendment by the executive branch of a substantive law. Moreover, the petitioner mentions that in the Letter dated December 5, 2001 of respondent Executive Secretary Romulo addressed to respondent Secretary Boncodin, the former endorsed to the latter the release of funds to certain LGUs from the LGSEF in accordance with the handwritten instructions of President Arroyo. Thus, the LGUs are at a loss as to how a portion of the LGSEF is actually allocated. Further, there are still portions of the LGSEF that, to date, have not been received by the petitioner; hence, resulting in damage and injury to the petitioner. The petitioner prays that the Court declare as unconstitutional and void the assailed provisos relating to the LGSEF in the GAAs of 1999, 2000 and 2001 and the assailed OCD resolutions (Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006, OCD-2000-023, OCD-2001-029 and OCD-2002-001) issued by the Oversight Committee pursuant thereto. The petitioner, likewise, prays that the Court direct the respondents to rectify the unlawful and illegal distribution and releases of the LGSEF for the aforementioned years and release the same in accordance with the sharing formula under Section 285 of the Local Government Code of 1991. Finally, the petitioner urges the Court to declare that the entire IRA should be released automatically without further action by the LGUs as required by the Constitution and the Local Government Code of 1991. The Respondents Arguments

The respondents, through the Offce of the Solicitor General, urge the Court to dismiss the petition on procedural and substantive grounds. On the latter, the respondents contend that the assailed provisos in the GAAs of 1999, 2000 and 2001 and the assailed resolutions issued by the Oversight Committee are not constitutionally infrm. The respondents advance the view that Section 6, Article X of the Constitution does not specify that the just share of the LGUs shall be determined solely by the Local Government Code of 1991. Moreover, the phrase as determined by law in the same constitutional provision means that there exists no limitation on the power of Congress to determine what is the just share of the LGUs in the national taxes. In other words, Congress is the arbiter of what should be the just share of the LGUs in the national taxes. The respondents further theorize that Section 285 of the Local Government Code of 1991, which provides for the percentage sharing of the IRA among the LGUs, was not intended to be a fxed determination of their just share in the national taxes. Congress may enact other laws, including appropriations laws such as the GAAs of 1999, 2000 and 2001, providing for a different sharing formula. Section 285 of the Local Government Code of 1991 was merely intended to be the default share of the LGUs to do away with the need to determine annually by law their just share. However, the LGUs have no vested right in a permanent or fxed percentage as Congress may increase or decrease the just share of the LGUs in accordance with what it believes is appropriate for their operation. There is nothing in the Constitution which prohibits Congress from making

such determination through the appropriations laws. If the provisions of a particular statute, the GAA in this case, are within the constitutional power of the legislature to enact, they should be sustained whether the courts agree or not in the wisdom of their enactment. On procedural grounds, the respondents urge the Court to dismiss the petition outright as the same is defective. The petition allegedly raises factual issues which should be properly threshed out in the lower courts, not this Court, not being a trier of facts. Specifcally, the petitioners allegation that there are portions of the LGSEF that it has not, to date, received, thereby causing it (the petitioner) injury and damage, is subject to proof and must be substantiated in the proper venue, i.e., the lower courts. Further, according to the respondents, the petition has already been rendered moot and academic as it no longer presents a justiciable controversy. The IRAs for the years 1999, 2000 and 2001, have already been released and the government is now operating under the 2003 budget. In support of this, the respondents submitted certifcations issued by offcers of the DBM attesting to the release of the allocation or shares of the petitioner in the LGSEF for 1999, 2000 and 2001. There is, therefore, nothing more to prohibit. Finally, the petitioner allegedly has no legal standing to bring the suit because it has not suffered any injury. In fact, the petitioners just share has even increased. Pursuant to Section 285 of the Local Government Code of 1991, the share of the provinces is 23%. OCD Nos. 99-005, 99-006 and 99-003 gave the provinces 40% of P2 billion of the LGSEF. OCD Nos. 2000-023 and 2001-029 apportioned 26% of P3.5 billion to the provinces. On the other hand, OCD No. 2001-001 allocated 25% of P3 billion to the provinces. Thus, the petitioner has not suffered any injury in the implementation of the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions. The Ruling of the Court

Procedural Issues

Before resolving the petition on its merits, the Court shall frst rule on the following procedural issues raised by the respondents: (1) whether the petitioner has legal standing or locus standi to fle the present suit; (2) whether the petition involves factual questions that are properly cognizable by the lower courts; and (3) whether the issue had been rendered moot and academic. The petitioner has locus standi to maintain the present suit

The gist of the question of standing is whether a party has alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of diffcult constitutional questions.[9] Accordingly, it has been held that the interest of a party assailing the constitutionality of a statute must be direct and personal. Such party must be able to show, not only that the law or any government act is invalid, but also that he has sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefnite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.[10] The Court holds that the petitioner possesses the requisite standing to maintain the present suit. The petitioner, a local government unit, seeks relief in order to protect or vindicate an interest of its own, and of the other LGUs. This interest pertains to the LGUs share in the national taxes or the IRA. The petitioners constitutional claim is, in substance, that the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions contravene Section 6, Article X of the Constitution, mandating the automatic release to the LGUs of their share in the national taxes. Further, the injury that the petitioner claims to suffer is the diminution of its share in the IRA, as provided under Section 285 of the Local Government Code of 1991, occasioned by the implementation of the assailed measures. These allegations are suffcient to grant the petitioner standing to question the validity of the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions as the petitioner clearly has a plain, direct and adequate interest in the manner and distribution of the IRA among the LGUs.

The petition involves a signifcant legal issue

The crux of the instant controversy is whether the assailed provisos contained in the GAAs of 1999, 2000 and 2001, and the OCD resolutions infringe the Constitution and the Local Government Code of 1991. This is undoubtedly a legal question. On the other hand, the following facts are not disputed: 1. 2. 3. The earmarking of fve billion pesos of the IRA for the LGSEF in the assailed provisos in the GAAs of 1999, 2000 and re-enacted budget for 2001; The promulgation of the assailed OCD resolutions providing for the allocation schemes covering the said fve billion pesos and the implementing rules and regulations therefor; and The release of the LGSEF to the LGUs only upon their compliance with the implementing rules and regulations, including the guidelines and mechanisms, prescribed by the Oversight Committee.

Considering that these facts, which are necessary to resolve the legal question now before this Court, are no longer in issue, the same need not be determined by a trial court.[11] In any case, the rule on hierarchy of courts will not prevent this Court from assuming jurisdiction over the petition. The said rule may be relaxed when the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of this Courts primary jurisdiction.[12] The crucial legal issue submitted for resolution of this Court entails the proper legal interpretation of constitutional and statutory provisions. Moreover, the transcendental importance of the case, as it necessarily involves the application of the constitutional principle on local autonomy, cannot be gainsaid. The nature of the present controversy, therefore, warrants the relaxation by this Court of procedural rules in order to resolve the case forthwith. The substantive issue needs to be resolved notwithstanding the supervening events

Granting arguendo that, as contended by the respondents, the resolution of the case had already been overtaken by supervening events as the IRA, including the LGSEF, for 1999, 2000 and 2001, had already been released and the government is now operating under a new appropriations law, still, there is compelling reason for this Court to resolve the substantive issue raised by the instant petition. Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution.[13] Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.[14] Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.[15] For the GAAs in the coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not be decided before another GAA is enacted. It, thus, behooves this Court to make a categorical ruling on the substantive issue now. Substantive Issue

As earlier intimated, the resolution of the substantive legal issue in this case calls for the application of a most important constitutional policy and principle, that of local autonomy.[16] In Article II of the Constitution, the State has expressly adopted as a policy that: Section 25. The State shall ensure the autonomy of local governments. An entire article (Article X) of the Constitution has been devoted to guaranteeing and promoting the autonomy of LGUs. Section 2 thereof reiterates the State policy in this wise:

Section 2. The territorial and political subdivisions shall enjoy local autonomy. Consistent with the principle of local autonomy, the Constitution confnes the Presidents power over the LGUs to one of general supervision.[17] This provision has been interpreted to exclude the power of control. The distinction between the two powers was enunciated in Drilon v. Lim:[18] An offcer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for doing the act. He has no judgment on this matter except to see to it that the rules are followed.[19] The Local Government Code of 1991[20] was enacted to fesh out the mandate of the Constitution.[21] The State policy on local autonomy is amplifed in Section 2 thereof: 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. Guided by these precepts, the Court shall now determine whether the assailed provisos in the GAAs of 1999, 2000 and 2001, earmarking for each corresponding year the amount of fve billion pesos of the IRA for the LGSEF and the OCD resolutions promulgated pursuant thereto, transgress the Constitution and the Local Government Code of 1991. The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions violate the constitutional precept on local autonomy

Section 6, Article X of the Constitution reads: Sec. 6. Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. When parsed, it would be readily seen that this provision mandates that (1) the LGUs shall have a just share in the national taxes; (2) the just share shall be determined by law; and (3) the just share shall be automatically released to the LGUs. The Local Government Code of 1991, among its salient provisions, underscores the automatic release of the LGUs just share in this wise: Sec. 18. Power to Generate and Apply Resources. Local government units shall have the power and authority to establish an organization that shall be responsible for the effcient and effective implementation of their development plans, program objectives and priorities; to create their own sources of revenue and to levy taxes, fees, and charges which shall accrue exclusively for their use and disposition and which shall be retained by them; to have a just share in national taxes which shall be automatically and directly released to them without need of further action; ... Sec. 286. Automatic Release of Shares. (a) The share of each local government unit shall be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer, as the case may be, on a quarterly basis within fve (5) days after the end of each quarter, and which shall not be subject to any lien or

holdback that may be imposed by the national government for whatever purpose. (b) Nothing in this Chapter shall be understood to diminish the share of local government units under existing laws. Websters Third New International Dictionary defnes automatic as involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a refex nature; without volition; mechanical; like or suggestive of an automaton. Further, the word automatically is defned as in an automatic manner: without thought or conscious intention. Being automatic, thus, connotes something mechanical, spontaneous and perfunctory. As such, the LGUs are not required to perform any act to receive the just share accruing to them from the national coffers. As emphasized by the Local Government Code of 1991, the just share of the LGUs shall be released to them without need of further action. Construing Section 286 of the LGC, we held in Pimentel, Jr. v. Aguirre,[22] viz: Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fscal autonomy is the automatic release of the shares of LGUs in the National internal revenue. This is mandated by no less than the Constitution. The Local Government Code specifes further that the release shall be made directly to the LGU concerned within fve (5) days after every quarter of the year and shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. As a rule, the term SHALL is a word of command that must be given a compulsory meaning. The provision is, therefore, IMPERATIVE. Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs IRA pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fscal situation in the country. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means something held back or withheld, often temporarily. Hence, the temporary nature of the retention by the national government does not matter. Any retention is prohibited. In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fscal autonomy of local governments. Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.[23] The just share of the LGUs is incorporated as the IRA in the appropriations law or GAA enacted by Congress annually. Under the assailed provisos in the GAAs of 1999, 2000 and 2001, a portion of the IRA in the amount of fve billion pesos was earmarked for the LGSEF, and these provisos imposed the condition that such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government units subject to the guidelines that may be prescribed by the Oversight Committee on Devolution. Pursuant thereto, the Oversight Committee, through the assailed OCD resolutions, apportioned the fve billion pesos LGSEF such that: For 1999 P2 billion - allocated according to Sec. 285 LGC P2 billion - Modifed Sharing Formula (Provinces 40%; Cities 20%; Municipalities 40%) P1 billion projects (LAAP) approved by OCD.[24] For 2000 P3.5 billion Modifed Sharing Formula (Provinces 26%; Cities 23%; Municipalities 35%; Barangays 16%); P1.5 billion projects (LAAP) approved by the OCD.[25] For 2001

P3 billion Modifed Sharing Formula (Provinces 25%; Cities 25%; Municipalities 35%; Barangays 15%) P1.9 billion priority projects P100 million capability building fund.[26] Signifcantly, the LGSEF could not be released to the LGUs without the Oversight Committees prior approval. Further, with respect to the portion of the LGSEF allocated for various projects of the LGUs (P1 billion for 1999; P1.5 billion for 2000 and P2 billion for 2001), the Oversight Committee, through the assailed OCD resolutions, laid down guidelines and mechanisms that the LGUs had to comply with before they could avail of funds from this portion of the LGSEF. The guidelines required (a) the LGUs to identify the projects eligible for funding based on the criteria laid down by the Oversight Committee; (b) the LGUs to submit their project proposals to the DILG for appraisal; (c) the project proposals that passed the appraisal of the DILG to be submitted to the Oversight Committee for review, evaluation and approval. It was only upon approval thereof that the Oversight Committee would direct the DBM to release the funds for the projects. To the Courts mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or just share of the LGUs in the national taxes. To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a fagrant violation of the constitutional and statutory mandate that the just share of the LGUs shall be automatically released to them. The LGUs are, thus, placed at the mercy of the Oversight Committee. Where the law, the Constitution in this case, is clear and unambiguous, it must be taken to mean exactly what it says, and courts have no choice but to see to it that the mandate is obeyed.[27] Moreover, as correctly posited by the petitioner, the use of the word shall connotes a mandatory order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of discretion.[28] Indeed, the Oversight Committee exercising discretion, even control, over the distribution and release of a portion of the IRA, the LGSEF, is an anathema to and subversive of the principle of local autonomy as embodied in the Constitution. Moreover, it fnds no statutory basis at all as the Oversight Committee was created merely to formulate the rules and regulations for the effcient and effective implementation of the Local Government Code of 1991 to ensure compliance with the principles of local autonomy as defned under the Constitution.[29] In fact, its creation was placed under the title of Transitory Provisions, signifying its ad hoc character. According to Senator Aquilino Q. Pimentel, the principal author and sponsor of the bill that eventually became Rep. Act No. 7160, the Committees work was supposed to be done a year from the approval of the Code, or on October 10, 1992.[30] The Oversight Committees authority is undoubtedly limited to the implementation of the Local Government Code of 1991, not to supplant or subvert the same. Neither can it exercise control over the IRA, or even a portion thereof, of the LGUs. That the automatic release of the IRA was precisely intended to guarantee and promote local autonomy can be gleaned from the discussion below between Messrs. Jose N. Nolledo and Regalado M. Maambong, then members of the 1986 Constitutional Commission, to wit: MR. MAAMBONG. Unfortunately, under Section 198 of the Local Government Code, the existence of subprovinces is still acknowledged by the law, but the statement of the Gentleman on this point will have to be taken up probably by the Committee on Legislation. A second point, Mr. Presiding Offcer, is that under Article 2, Section 10 of the 1973 Constitution, we have a provision which states: The State shall guarantee and promote the autonomy of local government units, especially the barrio, to insure their fullest development as self-reliant communities. This provision no longer appears in the present confguration; does this mean that the concept of giving local autonomy to local governments is no longer adopted as far as this Article is concerned? MR. NOLLEDO. No. In the report of the Committee on Preamble, National Territory, and Declaration of Principles, that concept is included and widened upon the initiative of Commissioner Bennagen. MR. MAAMBONG. Thank you for that.

With regard to Section 6, sources of revenue, the creation of sources as provided by previous law was subject to limitations as may be provided by law, but now, we are using the term subject to such guidelines as may be fxed by law. In Section 7, mention is made about the unique, distinct and exclusive charges and contributions, and in Section 8, we talk about exclusivity of local taxes and the share in the national wealth. Incidentally, I was one of the authors of this provision, and I am very thankful. Does this indicate local autonomy, or was the wording of the law changed to give more autonomy to the local government units?[31] MR. NOLLEDO. Yes. In effect, those words indicate also decentralization because local political units can collect taxes, fees and charges subject merely to guidelines, as recommended by the league of governors and city mayors, with whom I had a dialogue for almost two hours. They told me that limitations may be questionable in the sense that Congress may limit and in effect deny the right later on. MR. MAAMBONG. Also, this provision on automatic release of national tax share points to more local autonomy. Is this the intention? MR. NOLLEDO. Yes, the Commissioner is perfectly right.[32] The concept of local autonomy was explained in Ganzon v. Court of Appeals[33] in this wise: As the Constitution itself declares, local autonomy means a more responsive and accountable local government structure instituted through a system of decentralization. The Constitution, as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to liberate the local governments from the imperialism of Manila. Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government. As we observed in one case, decentralization means devolution of national administration but not power to the local levels. Thus: Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments more responsive and accountable and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises general supervision over them, but only to ensure that local affairs are administered according to law. He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the [sic] favor of local governments [sic] units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to self-immolation, since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.[34] Local autonomy includes both administrative and fscal autonomy. The fairly recent case of Pimentel v. Aguirre[35] is particularly instructive. The Court declared therein that local fscal autonomy includes the power of the LGUs to, inter alia, allocate their resources in accordance with their own priorities: Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions, enjoy fscal autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. It extends to the preparation of their budgets, and local offcials in turn have to work within the constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not ...[36]

Further, a basic feature of local fscal autonomy is the constitutionally mandated automatic release of the shares of LGUs in the national internal revenue.[37] Following this ratiocination, the Court in Pimentel struck down as unconstitutional Section 4 of Administrative Order (A.O.) No. 372 which ordered the withholding, effective January 1, 1998, of ten percent of the LGUs IRA pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fscal situation. In like manner, the assailed provisos in the GAAs of 1999, 2000 and 2001, and the OCD resolutions constitute a withholding of a portion of the IRA. They put on hold the distribution and release of the fve billion pesos LGSEF and subject the same to the implementing rules and regulations, including the guidelines and mechanisms prescribed by the Oversight Committee from time to time. Like Section 4 of A.O. 372, the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions effectively encroach on the fscal autonomy enjoyed by the LGUs and must be struck down. They cannot, therefore, be upheld. The assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions cannot amend Section 285 of the Local Government Code of 1991

Section 284[38] of the Local Government Code provides that, beginning the third year of its effectivity, the LGUs share in the national internal revenue taxes shall be 40%. This percentage is fxed and may not be reduced except in the event the national government incurs an unmanageable public sector defcit and only upon compliance with stringent requirements set forth in the same section: Sec. 284. ...

Provided, That in the event that the national government incurs an unmanageable public sector defcit, the President of the Philippines is hereby authorized, upon recommendation of Secretary of Finance, Secretary of Interior and Local Government and Secretary of Budget and Management, and subject to consultation with the presiding offcers of both Houses of Congress and the presidents of the liga, to make the necessary adjustments in the internal revenue allotment of local government units but in no case shall the allotment be less than thirty percent (30%) of the collection of the national internal revenue taxes of the third fscal year preceding the current fscal year; Provided, further That in the frst year of the effectivity of this Code, the local government units shall, in addition to the thirty percent (30%) internal revenue allotment which shall include the cost of devolved functions for essential public services, be entitled to receive the amount equivalent to the cost of devolved personnel services. Thus, from the above provision, the only possible exception to the mandatory automatic release of the LGUs IRA is if the national internal revenue collections for the current fscal year is less than 40 percent of the collections of the preceding third fscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fscal year. The adjustment may even be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fscal year. In the instant case, however, there is no allegation that the national internal revenue tax collections for the fscal years 1999, 2000 and 2001 have fallen compared to the preceding three fscal years. Section 285 then specifes how the IRA shall be allocated among the LGUs: Sec. 285. Allocation to Local Government Units. The share of local government units in the internal revenue allotment shall be allocated in the following manner: (a) (d) Provinces Twenty-three (23%) (b) Cities Twenty-three percent (23%); (c) Municipalities Thirty-four (34%); and Barangays Twenty percent (20%).

However, this percentage sharing is not followed with respect to the fve billion pesos LGSEF as the assailed OCD resolutions, implementing the assailed provisos in the GAAs of 1999, 2000 and 2001, provided for a different sharing scheme. For example, for 1999, P2 billion of the LGSEF was allocated as follows: Provinces 40%; Cities 20%; Municipalities 40%.[39] For 2000, P3.5 billion of the LGSEF was allocated in this manner:

Provinces 26%; Cities 23%; Municipalities 35%; Barangays 26%.[40] For 2001, P3 billion of the LGSEF was allocated, thus: Provinces 25%; Cities 25%; Municipalities 35%; Barangays 15%.[41] The respondents argue that this modifcation is allowed since the Constitution does not specify that the just share of the LGUs shall only be determined by the Local Government Code of 1991. That it is within the power of Congress to enact other laws, including the GAAs, to increase or decrease the just share of the LGUs. This contention is untenable. The Local Government Code of 1991 is a substantive law. And while it is conceded that Congress may amend any of the provisions therein, it may not do so through appropriations laws or GAAs. Any amendment to the Local Government Code of 1991 should be done in a separate law, not in the appropriations law, because Congress cannot include in a general appropriation bill matters that should be more properly enacted in a separate legislation.[42] A general appropriations bill is a special type of legislation, whose content is limited to specifed sums of money dedicated to a specifc purpose or a separate fscal unit.[43] Any provision therein which is intended to amend another law is considered an inappropriate provision. The category of inappropriate provisions includes unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kinds of laws have no place in an appropriations bill.[44] Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein, which are fxed in the Local Government Code of 1991, are matters of general and substantive law. To permit Congress to undertake these amendments through the GAAs, as the respondents contend, would be to give Congress the unbridled authority to unduly infringe the fscal autonomy of the LGUs, and thus put the same in jeopardy every year. This, the Court cannot sanction. It is relevant to point out at this juncture that, unlike those of 1999, 2000 and 2001, the GAAs of 2002 and 2003 do not contain provisos similar to the herein assailed provisos. In other words, the GAAs of 2002 and 2003 have not earmarked any amount of the IRA for the LGSEF. Congress had perhaps seen ft to discontinue the practice as it recognizes its infrmity. Nonetheless, as earlier mentioned, this Court has deemed it necessary to make a defnitive ruling on the matter in order to prevent its recurrence in future appropriations laws and that the principles enunciated herein would serve to guide the bench, bar and public. Conclusion

In closing, it is well to note that the principle of local autonomy, while concededly expounded in greater detail in the present Constitution, dates back to the turn of the century when President William McKinley, in his Instructions to the Second Philippine Commission dated April 7, 1900, ordered the new Government to devote their attention in the frst instance to the establishment of municipal governments in which the natives of the Islands, both in the cities and in the rural communities, shall be afforded the opportunity to manage their own affairs to the fullest extent of which they are capable, and subject to the least degree of supervision and control in which a careful study of their capacities and observation of the workings of native control show to be consistent with the maintenance of law, order and loyalty.[45] While the 1935 Constitution had no specifc article on local autonomy, nonetheless, it limited the executive power over local governments to general supervision ... as may be provided by law.[46] Subsequently, the 1973 Constitution explicitly stated that [t]he State shall guarantee and promote the autonomy of local government units, especially the barangay to ensure their fullest development as self-reliant communities.[47] An entire article on Local Government was incorporated therein. The present Constitution, as earlier opined, has broadened the principle of local autonomy. The 14 sections in Article X thereof markedly increased the powers of the local governments in order to accomplish the goal of a more meaningful local autonomy. Indeed, the value of local governments as institutions of democracy is measured by the degree of autonomy that they enjoy.[48] As eloquently put by M. De Tocqueville, a distinguished French political writer, [l]ocal assemblies of citizens constitute the strength of free nations. Township meetings are to liberty what primary schools are to science; they bring it within the peoples reach; they teach men how to use and enjoy it. A nation may establish a system of free governments but without the spirit of municipal institutions, it cannot have the spirit of liberty.[49] Our national offcials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit and liberty upon which these provisions are based.[50] WHEREFORE, the petition is GRANTED. The assailed provisos in the General Appropriations Acts of 1999, 2000 and 2001, and the assailed OCD Resolutions, are declared UNCONSTITUTIONAL.

SO ORDERED. Vitug, (Acting Chief Justice), Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. Davide, Jr., C.J., and Puno, J., on offcial leave.

Republic of the PhilippinesSUPREME COURTManila EN BANC G.R. No. 163193 June 15, 2004

SIXTO S. BRILLANTES, JR., petitioner,JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE A. BERNAS, Petitioners-in-Intervention, vs. COMMISSION ON ELECTIONS, respondent. DECISION CALLEJO, SR., J.: Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court fled by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS. 1 The petitioner, likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the questioned resolution. After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI). The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any and all other issuances related to the implementation of the so-called election quick count project. In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents required of them. The Antecedents On December 22, 1997, Congress enacted Republic Act No. 8436 2 authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials. The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly some automated ballots, however, deferred its implementation.3 In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints. On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for the 2004 elections consisting of three (3) phases, to wit: (1) PHASE I Computerized system of registration and voters validation or the so-called "biometrics" system of registration;

(2) PHASE II Computerized voting and counting of votes; and (3) PHASE III Electronic transmission of results. It resolved to conduct biddings for the three phases. On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, 4 which allocated the sum of P2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections. On January 28, 2003, the COMELEC issued an Invitation to Bid 5 for the procurement of supplies, equipment, materials and services needed for the complete implementation of all three phases of the AES with an approved budget of P2,500,000,000. On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175,6 authorizing the release of a supplemental P500 million budget for the AES project of the COMELEC. The said issuance, likewise, instructed the Department of Budget and Management (DBM) to ensure that the aforementioned additional amount be used exclusively for the AES prescribed under Rep. Act No. 8436, particularly "the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections."7 On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacifc Consortium and correspondingly entered into a contract with the latter to implement the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT.8 The contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, fnancial and technical expertise necessary to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of P298,375,808.90 as rentals for the leased equipment and for its services. In the meantime, the Information Technology Foundation of the Philippines (ITFP), fled a petition for certiorari and prohibition in this Court for the nullifcation of Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacifc Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches. On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacifc Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with Mega Pacifc Consortium for the purchase of computerized voting/counting machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections. On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its implementation, as evinced by the COMELECs pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an electronic transmission of advanced "unoffcial" results of the 2004 elections for national, provincial and municipal positions, also dubbed as an "unoffcial quick count." Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads: Dear Chairman Abalos,

This is to confrm my opinion which I relayed to you during our meeting on January 28th that the Commission on Elections cannot and should not conduct a "quick count" on the results of the elections for the positions of President and Vice-President. Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would be lacking of any Constitutional authority. You conceded the validity of the position we have taken on this point. In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to include the votes for President and Vice-President in the "quick count", to which you graciously consented. Thank you very much.9 The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the implementation of the project since the money allocated by the Offce of the President for the AES had already been spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit specifcation in the project contract for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a feld test of the electronic transmission of election results. On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its implementation of Phase III of the AES. 10 During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow Commissioners that "whatever is said here should be confned within the four walls of this room and the minutes so that walang masyadong problema.11 Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of the COMELEC may not be proper for realignment. CommissionersResurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project. Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then manifested that the consideration for the contract for Phase III had already been almost fully paid even before the Courts nullifcation of the contract for Phase II of the AES, but he was open to the possibility of the realignment of funds of the COMELEC for the funding of the project. He added that if the implementation of Phase III would not be allowed to continue just because Phase II was nullifed, then it would be P300,000,000 down the drain, in addition to the already allocated disbursement on Phase II of the AES.12 Other concerns of the Commissioners were on the legality of the project considering the scrapping of Phase II of the AES, as well as the operational constraints related to its implementation. Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely two weeks before the national and local elections, approved the assailed resolution declaring that it "adopts the policy that the precinct election results of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila." 13 For the purpose, respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.14 Briefy, the procedure for this electronic transmission of precinct results is outlined as follows: I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by each ETC; 15 II. Each city and municipality shall have an ETC "where votes obtained by each candidate for all positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through Very Small Aperture Terminal (VSAT) facilities." 16 For this purpose, personal computers shall be allocated for all cities and municipalities at the rate of one set for every one hundred seventy-fve (175) precincts; 17

III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced precinct results.18 The assailed resolution further provides that written notices of the date, time and place of the electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to political parties felding candidates, and parties, organizations/coalitions participating under the party-list system.19 In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and the tabulations were "advanced unoffcial results." The entirety of Section 13, reads: Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of parties, accredited political party, sectoral party/organization or coalition thereof under the party-list, through its representative, and every candidate for national positions has the right to observe/witness the encoding and electronic transmission of the ERs within the authorized perimeter. Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang bayan belonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC. The citizens arm of the Commission, and civic, religious, professional, business, service, youth and other similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the Minutes. The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to the Minutes. The encoding proceedings being ministerial in nature, and the tabulations being advanced unoffcial results, no objections or protests shall be allowed or entertained by the ETC. In keeping with the "unoffcial" character of the electronically transmitted precinct results, the assailed resolution expressly provides that "no print-outs shall be released at the ETC and at the NCC." 20 Instead, consolidated and per-precinct results shall be made available via the Internet, text messaging, and electronic billboards in designated locations. Interested parties may print the result published in the COMELEC web site.21 When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution: This refers to COMELEC Resolution 6712 promulgated on 28 April 2004. NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation over the past week[:] a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to use an election return for an unoffcial count; other unoffcial counts may not be based on an election return; Indeed, it may be fairly inferred from the law that except for the copy of the citizens arm, election returns may only be used for canvassing or for receiving dispute resolutions. b) The Commissions copy, the second or third copy of the election return, as the case may be, has always been

intended to be an archived copy and its integrity preserved until required by the Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have been in contact with the return before the Commission unseals it. c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the integrity of the Commissions copy is breached, thereby rendering it void of any probative value. To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an advanced count by the COMELEC may affect the credibility of the elections because it will differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the elections. In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the use of election returns for the consolidation of the election results for the May 10, 2004 elections.22 The Present Petition On May 4, 2004, the petition at bar was fled in this Court. Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, fled with this Court their Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge the Court to declare as null and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The Court granted the motion of the petitioners-in-intervention and admitted their petition. In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the offcial COMELEC count under the fully automated system and not any kind of "unoffcial" count via electronic transmission of advanced results as now provided under the assailed resolution. The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to conduct an "unoffcial" electronic transmission of results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution. On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the "unoffcial" quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the adoption of technological and electronic devices during the elections. For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolutions validity claiming that it was promulgated in the exercise of the respondent COMELECs executive or administrative power. It asserts that the present controversy involves a "political question;" hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to fle the present petition, as he has not alleged any injury which he would or may suffer as a result of the implementation of the assailed

resolution. On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program, no specifc law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such that, even if the frst two phases have been scrapped, the latter phase may still proceed independently of and separately from the others. It further argues that there is statutory basis for it to conduct an "unoffcial" quick count. Among others, it invokes the general grant to it of the power "to ensure free, orderly, honest, peaceful and credible elections." Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of the 2004 elections were suffciently notifed of the electronic transmission of advanced election results. The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the petitioners-inintervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing that the project is "unoffcial" in nature, the COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the votes for President and Vice-President. The Issues At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows: 1. Whether the petitioner and the petitioners-intervenors have standing to sue; 2. Assuming that they have standing, whether the issues they raise are political in nature over which the Court has no jurisdiction; 3. Assuming the issues are not political, whether Resolution No. 6712 is void: (a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the 1987 Constitution to canvass the votes for the election of President and Vice-President; (b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law;" (c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens arm to use an election return for an "unoffcial" count; (d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30) days notice of the use of new technological and electronic devices; and, (e) for lack of constitutional or statutory basis; and, 4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos. The Ruling of the Court The issues, as earlier defned, shall now be resolved in seriatim: The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The Present Action The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of diffcult constitutional questions. 23 Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-inintervention, as taxpayers, possess the requisite standing to question its validity as they have suffcient interest in preventing the illegal expenditure of money raised by taxation. 24 In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that publicmoney is being defected to any improper purpose, or where the petitioners seek to restrain the respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.25 Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens arm authorized to conduct an "unoffcial" quick count during the said elections. They have suffcient, direct and personal interest in the manner by which the respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein. Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress. The Issue Raised By The Petition Is Justiciable Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that: 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 grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Court does not agree with the posture of the respondent COMELEC that the issue involved in the present petition is a political question beyond the jurisdiction of this Court to review. As the leading case of Taada vs. Cuenco26 put it, political questions are concerned with "issues dependent upon the wisdom, not legality of a particular measure." The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELECs administrative issuance will not preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out. 27 When the grant of power is qualifed, conditional or subject to limitations, the issue of whether the prescribed qualifcations or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.28 In the present petition, the Court must pass upon the petitioners contention that Resolution No. 6712 does not have adequate statutory or constitutional basis. Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone. Except for the President and Vice-President, the newly- elected national and local offcials have been proclaimed. Nonetheless, the Court fnds it necessary to resolve the merits of the substantive issues for future guidance of both the bench and bar.29 Further, it is settled rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review." 30

The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or Excess Of Jurisdiction In Issuing Resolution No. 6712 The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the assailed resolution. The Court rules in the affrmative. An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter, oversteps its authority as determined by law. 31 There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32 First. The assailed resolution usurps, under the guise of an "unoffcial" tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part: The returns of every election for President and Vice-President duly certifed 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 certifcates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certifcates 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. As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any "quick count" of the votes cast for the positions of President and Vice-President. In his Letter dated February 2, 200433 addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that "any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority."34 Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of President, VicePresident, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress. Parenthetically, even the provision of Rep. Act No. 8436 confrms the constitutional undertaking of Congress as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides: SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. -- The Senate and the House of Representatives, in joint public session, shall compose the national board of canvassers for president and vicepresident. The returns of every election for president and vice-president duly certifed 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 certifcates of canvass, the president of the Senate shall, not later than thirty (30) days after the day of the election, open all the certifcates in the presence of the Senate and the House of Representatives in joint public session, and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for president and vice-president. The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is "unoffcial," is puerile and totally unacceptable. If the COMELEC is proscribed

from conducting an offcial canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an "unoffcial" canvass of said votes. The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the resolution that it decided not to conduct an "unoffcial" quick count of the results of the elections for President and Vice-President. Commissioner Sadain so declared during the hearing: JUSTICE PUNO: The word you are saying that within 36 hours after election, more or less, you will be able to tell the people on the basis of your quick count, who won the election, is that it? COMM. SADAIN: Well, its not exactly like that, Your Honor. Because the fact of winning the election would really depend on the canvassed results, but probably, it would already give a certain degree of comfort to certain politicians to people rather, as to who are leading in the elections, as far as Senator down are concerned, but not to President and Vice-President. JUSTICE PUNO: So as far as the Senatorial candidates involved are concerned, but you dont give this assurance with respect to the Presidential and Vice-Presidential elections which are more important? COMM. SADAIN: In deference to the request of the Senate President and the House Speaker, Your Honor. According to them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will be pre-empting their canvassing work and the proclamation of the winners and we gave in to their request.35 JUSTICE CALLEJO, [SR.]: Perhaps what you are saying is that the system will minimize "dagdag-bawas" but not totally eradicate "dagdagbawas"? COMM. SADAIN: Yes, Your Honor. JUSTICE CALLEJO, [SR.]: Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the Speaker and the Senate President and the Chairman during which the Senate President and the Speaker voice[d] their objections to the electronic transmission results system, can you share with us the objections of the two gentlemen? COMM. SADAIN: These was relayed to us Your Honor and their objection or request rather was for us to refrain from consolidating and publishing the results for presidential and vice-presidential candidates which we have already granted Your Honors. So, there is going to be no consolidation and no publication of the COMM. SADAIN:

Reason behind being that it is actually Congress that canvass that the offcial canvass for this and proclaims the winner.36 Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law."37 By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is "unoffcial" in character, meaning "not emanating from or sanctioned or acknowledged by the government or government body.38 Any disbursement of public funds to implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the "unoffcial" quick count project may even be considered as a felony under Article 217 of the Revised Penal Code, as amended. 39 Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and software, among others. According to the COMELEC, it needed P55,000,000 to operationalize the project, including the encoding process.40 Hence, it would necessarily involve the disbursement of public funds for which there must be the corresponding appropriation. The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount needed for its "unoffcial" tabulation. We quote the transcript of stenographic notes taken during the hearing: JUSTICE VITUG: And you mentioned earlier something about 55 million not being paid as yet? COMM. SADAIN: This is an extra amount that we will be needing to operationalize. JUSTICE VITUG: And this has not yet been done? COMM. SADAIN: It has not yet been done, Your Honor. JUSTICE VITUG: Would you consider the funds that were authorized by you under the General Appropriations Act as capable of being used for this purpose? COMM. SADAIN: Yes, thats our position, Your Honor.41 But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already approved the assailed resolution, it was still looking for the P55,000,000 needed to operationalize the project: JUSTICE CARPIO: Just a clarifcation. You stated that you signed already the main contract for 300 million but you have not signed

the 55 million supplemental contract for the encoding? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Because you still dont have the money for that? COMM. SADAIN: Well, yes, we are trying to determine where we can secure the money. JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project collapses? COMM. SADAIN: Yes.42 Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already found the money, but that proper documentation was forthcoming: JUSTICE CARPIO: Just a clarifcation. You stated that you signed already the main contract for 300 million but you have not signed the 55 million supplemental contract for the encoding? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Because you still dont have the money for that? COMM. SADAIN: Well, yes, we are trying to determine where we can secure the money. JUSTICE CARPIO: Now, the encoding is crucial; without the encoding, the entire project collapses? COMM. SADAIN: Yes. JUSTICE CARPIO: So, you have two (2) days to look for the 55 million, you have signed the contract on the main contract and if you dont get that 55 million, that 300 million main contract goes to waste, because you cannot encode?

COMM. SADAIN: Its just a matter of proper documentation, Your Honor, because I was informed by our Finance Department that the money is there. JUSTICE CARPIO: So, you have found the money already? COMM. SADAIN: Yes, Your Honor.43 Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and the possibility of realigning funds to fnance the project: Comm. Tuason: May I just request all the parties who are in here na whatever is said here should be confned within the four walls of this room and the minutes so that walang masyadong problema. Comm. Borra: Sa akin lang, we respect each others opinion. I will not make any observations. I will just submit my own memo to be incorporated in the minutes. Comm. Tuason: Commissioner Borra will submit a comment to be attached to the minutes but not on the resolution. Ako naman, I will just make it on record my previous reservation. I do not have any objection as to the Phase III modernization project itself. My main concern is the budget. I would like to make it on record that the budget for Phase III should be taken from the modernization program fund because Phase III is defnitely part of the modernization project. Other funds, for instance other funds to be used for national elections may not be proper for realignment. That is why I am saying that the funds to be used for Phase III should properly come from the modernization. The other reservation is that the Election Offcers are now plagued with so much work such as the preparation of the list of voters and their concern in their respective areas. They were saying to me, specially so in my own region, that to burden them with another training at this point in time will make them loose (sic) focus on what they are really doing for the national elections and what they are saying is that they should not be subjected to any training anymore. And they also said that come canvassing time, their priority would be to canvass frst before they prepare the certifcate of votes to be fed to the encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our people in the feld. That is also one of my reservations. Thank you. Comm. Garcillano: I also have my observations regarding the fnancial restraint that we are facing if the money that is going to be used for this is taken from the Phase II, I dont think there is money left. Comm. Borra: There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional expenses for the technical working group and staff for Phase II. Comm. Garcillano:

I also have one problem. We have to have additional people to man this which I think is already being taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled by our EO and Election Assistant. I do not know if it is given to somebody (inaudible) Comm. Tuason: Those are your reservations. Comm. Barcelona: As far as I am concerned, I also have my reservations because I have the same experience as Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES expressed apprehension over the additional training period that they may have to undergo although, they say, that if that is an order they will comply but it will be additional burden on them. I also share the concern of Commissioner Tuason with regard to the budget that should be taken from the modernization budget. Comm. Borra: For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan eh legal, second is technicaloperational and third is fnancial. Comm. Sadain: Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase III inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the time when the Phase II contract was nullifed. So if we stop the implementation of Phase III just because Phase II was nullifed, which means that there would be no consolidation and accounting consolidation for the machines, then it would be again 300 million pesos down the drain. Necessarily there would be additional expense but we see this as a consequence of the loss of Phase II. I share the view of Comm. Tuason that as much as possible this should be taken from the modernization fund as much as this is properly modernization concern. However, I would like to open myself to the possibility na in case wala talaga, we might explore the possibility of realigning funds although that might not (inaudible). Now with regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think the legality issue must have been settled already as early as when we approved the modernization program involving all three phases although we also grant the beneft of the argument for Commissioner Borra if he thinks that there is going to be a legal gap for the loss of Phase II. With regards the concern with the Election Offcers, I also share the same concern. In fact, on this matter alone, we try to make the GI as simple as possible so that whatever burden we will be giving to the EOs and EAs will be minimized. As in fact, we will be recommending that the EOs will no longer be bothered to attend the training. They can probably just sit in for the frst hour and then they can go on with their normal routine and then leave the encoders as well as the reception offcers to attend the training because there (sic) are the people who will really be doing the ministerial, almost mechanical, work of encoding and transmitting the election results. Yun lang.44 We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and fnd no appropriation for the project of the COMELEC for electronic transmission of "unoffcial" election results. What is appropriated therein is the amount of P225,000,000 of the capital outlay for the modernization of the electoral system.

B. PROJECTS

I.

Maintenance & Other Operating Expenses Locally-Funded Projects a. For the Modernizatio n of Electoral System

Capital Outlays

Total

225,000,000

225,000,000

b. FY 2003 Preparatory Activities for 250,000,000 250,000,000 National Elections c. Upgrading of Voters 125,000,000 125,000,000 Database d. Conduct of Special Election to fll the 6,500,000 6,500,000 vacancy in the Third District of Cavite e. Implementati on of Absentee 300,000,000 300,000,000 Voting Act of 2003 (RA 9189) Sub-Total, Locally-Funded ========== ========= ========== 45 Projects 681,500,000 225,000,000 300,000,000 Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of P225,000,000 shall be used primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz: 3. Modernization of Electoral System. The appropriations herein authorized for the Modernization of the Electoral System in the amount of Two Hundred Twenty-Five Million Pesos (P225,000,000.00) shall be used primarily for the establishment of the automated election system, prescribed under Republic Act No. 8436, particularly for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.46 Section 52 of Rep. Act No. 9206 proscribes any change or modifcation in the expenditure items authorized thereunder. Thus: Sec. 52. Modifcation of Expenditure Components. Unless specifcally authorized in this Act, no change or modifcation shall be made in the expenditure items in this Act and other appropriations laws unless in cases of augmentation from savings in appropriations as authorized under Section 25(5), Article VI of the 1987 Philippine Constitution. Neither can the money needed for the project be taken from the COMELECs savings, if any, because it would be violative of Article VI, Section 25 (5)47 of the 1987 Constitution. The power to augment from savings lies dormant until authorized by law. 48 In this case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer savings from another item in its appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the Senate certifed that there is no law appropriating any amount for an "unoffcial" count and tabulation of the votes cast during the May 10, 2004 elections: CERTIFICATION I hereby certify that per records of the Senate, Congress has not legislated any appropriation intended to defray the cost of an unoffcial count, tabulation or consolidation of the votes cast during the May 10, 2004 elections. May 11, 2004. Pasay City, Philippines.

What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on April 27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence of a certifcation of availability of funds for the project, it approved the assailed resolution. Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens arm to conduct the "unoffcial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173,49 and reiterated in Section 18 of Rep. Act No. 8436, 50 the accredited citizens arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an "unoffcial" counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an "unoffcial" count. In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under the aforementioned laws, are not intended for undertaking an "unoffcial" count. The aforesaid COMELEC copies are archived and unsealed only when needed by the respondent COMELEC to verify election results in connection with resolving election disputes that may be imminent. However, in contravention of the law, the assailed Resolution authorizes the so-called Reception Offcers (RO), to open the second or third copy intended for the respondent COMELEC as basis for the encoding and transmission of advanced "unoffcial" precinct results. This not only violates the exclusive prerogative of NAMFREL to conduct an "unoffcial" count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board of Election Inspectors to the COMELEC. Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the use of the latest technological and election devices for "unoffcial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. Section 52(i) reads: SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall : (i) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest technological and electronic devices for electoral purposes, it must act in accordance with the following conditions: (a) Take into account the situation prevailing in the area and the funds available for the purpose; and, (b) Notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the opportunity to object to the effectiveness of the proposed technology and devices, and, if they are so minded not to object, to allow them ample time to feld their own trusted personnel especially in far fung areas and to take other necessary measures to ensure the reliability of the proposed electoral technology or device. As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the Commissioners apprehensions regarding the legal, operational and fnancial impediments thereto. More signifcantly, since

Resolution No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the respondent COMELEC could not have possibly complied with the thirty-day notice requirement provided under Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional right to due process of the political parties and candidates. The Offce of the Solicitor General (OSG) concedes this point, as it opines that "the authorized representatives of accredited political parties and candidates should have been notifed of the adoption of the electronic transmission of election returns nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the Omnibus Election Code." 51 Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the 2004 elections, as mandated by law: JUSTICE CARPIO: You stated that you have notifed in writing all the political parties and candidates as required in Section 52 (i)? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: Now, how many candidates are there nationwide now? COMM. SADAIN: I must admit you Honor we were not able to notify the candidates but we notifed the politicians. JUSTICE CARPIO: Yes, but what does the law state? Read the law please. COMM. SADAIN: Yes, Your Honor. I understand that it includes candidates. JUSTICE CARPIO: And there are how many candidates nationwide running in this election? COMM. SADAIN: Hundreds of thousands, Your Honor. JUSTICE CARPIO: Hundreds of thousands, so you mean you just notifed the political parties not the candidates? COMM. SADAIN: Yes, Your Honor. JUSTICE CARPIO: And you think that is substantial compliance, you would notify how many political parties as against hundreds of thousands of candidates?

COMM. SADAIN: Yes, Your Honor, we notifed the major political parties, Your Honor. JUSTICE CARPIO: Only the major political parties? COMM. SADAIN: Including party list? JUSTICE CARPIO: But not the candidates, individual candidates? COMM. SADAIN: We were not able to do that, Your Honor, I must admit. JUSTICE CARPIO: So, you did not notify hundreds of thousands of candidates? COMM. SADAIN: No, Your Honors.52 The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notifed all political parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This notwithstanding the fact that even long before the issuance of the assailed resolution, it had admittedly entered into a contract on April 15, 2003 53 and acquired facilities pertaining to the implementation of the electronic transmission and offcial tabulation of election results. As correctly pointed out by the petitioners-in-intervention, the invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the political parties on election security measures did not mention electronic transmission of advanced results, much less the formal adoption of the purpose of the conference. Such "notices" merely invited the addressee thereof or its/his authorized representative to a conference where the COMELEC would show a sample of the offcial ballot to be used in the elections, discuss various security measures that COMELEC had put in place, and solicit suggestions to improve the administration of the polls. 54 Further, the invitations purportedly sent out to the political parties regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be conducted by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after offce hours. There is no showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said invitations did not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus Election Code.55 Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body tasked to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall"56 and to ensure "free, orderly, honest, peaceful and credible elections" 57 is beyond cavil. That it possesses the power to promulgate rules and regulations in the performance of its constitutional duties is, likewise, undisputed. However, the duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are carried out, at all times, in its offcial capacity. There is no constitutional and statutory basis for the respondent COMELEC to undertake a separate and an "unoffcial" tabulation of results, whether manually or electronically. Indeed, by conducting such "unoffcial" tabulation of the results of the election, the COMELEC descends to the level of a private organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts a slow but "offcial" count, and an alleged quicker but "unoffcial" count, the results of each may substantially differ.

Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase IIIModernization Project of the COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the program. This is so provided in Section 6 of Rep. Act No. 8436. SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system. To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notifed of and allowed to observe but not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions. The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes and canvassing/consolidation of results of the national and local elections" corresponding to the Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each other. The implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase III. The nullifcation by this Court of the contract for Phase II of the System effectively put on hold, at least for the May 10, 2004 elections, the implementation of Phase III of the AES. Sixth. As correctly observed by the petitioner, there is a great possibility that the "unoffcial" results refected in the electronic transmission under the supervision and control of the COMELEC would signifcantly vary from the results refected in the COMELEC offcial count. The latter follows the procedure prescribed by the Omnibus Election Code, which is markedly different from the procedure envisioned in the assailed resolution. Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the same simultaneously on the tally boards and on two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all the ERs and proclaim the elected municipal offcials. All the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These SOVs are then transferred to the certifcates of canvass (COCs) which are, in turn, brought to the Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various municipalities and proclaim the elected provincial offcials, including those to the House of Representatives. The PBC would then prepare two sets of Provincial Certifcates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the results for the President and Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for Senators. As the results are transposed from one document to another, and as each document undergoes the procedure of canvassing by various Boards of Canvassers, election returns and certifcates of canvass are objected to and at times excluded and/or deferred and not tallied, long after the pre-proclamation controversies are resolved by the canvass boards and the COMELEC. On the other hand, under the assailed resolution, the precinct results of each city and municipality received by the ETCs would be immediately electronically transmitted to the NCC. Such data, which have not undergone the process of canvassing, would expectedly be dissimilar to the data on which the offcial count would be based. Resultantly, the offcial and unoffcial canvass, both to be administered by the respondent COMELEC, would most likely not tally. In the past elections, the "unoffcial" quick count conducted by the NAMFREL had never tallied with that of the offcial count of the COMELEC, giving rise to allegations of "trending" and confusion. With a second "unoffcial" count to be conducted by the offcial election body, the respondent COMELEC, in

addition to its offcial count, allegations of "trending," would most certainly be aggravated. As a consequence, the electoral process would be undermined. The only intimated utility claimed by the COMELEC for the "unoffcial" electronic transmission count is to avert the so-called "dagdag-bawas." The purpose, however, as the petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs profession that from the results of the "unoffcial" count, it would be able to validate the credibility of the offcial tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an election question or dispute which has not been formally brought before it for quasi-judicial cognizance and resolutions. Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the implementation of the assailed resolution. It is observed that such problem arises because of the element of human intervention. In the prevailing set up, there is human intervention because the results are manually tallied, appreciated, and canvassed. On the other hand, the electronic transmission of results is not entirely devoid of human intervention. The crucial stage of encoding the precinct results in the computers prior to the transmission requires human intervention. Under the assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of "dagdag-bawas" could still occur at this particular stage of the process. As it stands, the COMELEC "unoffcial" quick count would be but a needless duplication of the NAMFREL "quick" count, an illegal and unnecessary waste of government funds and effort. Conclusion The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics confdence in the Philippine Electoral System by: 1. Facilitating transparency in the process; 2. Ensuring the integrity of the results; 3. Reducing election results manipulation; 4. Providing timely, fast and accurate information to provide the public re election results; 5. Enabling the validation of its own offcial count and other counts; 6. Having an audit trail in its own account.58 Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.59 WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID. SO ORDERED. Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago**, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

EN BANC [G. R. No. 151992. September 18, 2002]

COMMISSION ON ELECTIONS, COMELEC CHAIRMAN ALFREDO L. BENIPAYO, COMELEC COMMISSIONERS RESURRECCION Z. BORRA and FLORENTINO A. TUASON, JR., petitioners, vs. JUDGE MA. LUISA QUIJANO-PADILLA, REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 215 and PHOTOKINA MARKETING CORP., respondents. DECISION SANDOVAL-GUTIERREZ, J.: The contracting prerogative of public offcers is circumscribed with a heavy burden of responsibility. They must exercise utmost caution and observe the law in order to protect the public from unjust and inequitable government contracts. The case at bar provides us with another occasion to stress that with respect to government contracts, statutes take precedence over the public offcers freedom to contract. Here, the primordial question to be resolved is -- may a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, alleging that respondent Judge Ma. Luisa Quijano-Padilla of the Regional Trial Court, Branch 215, Quezon City, committed grave abuse of discretion in issuing the (a) Resolution[1] dated December 19, 2001 granting private respondents application for a writ of preliminary prohibitory injunction in Special Civil Action No. Q-0145405[2]; and (b) Resolution[3] dated February 7, 2002 denying petitioners Omnibus Motion to dismiss the petition and their motion for reconsideration of the same Resolution and granting private respondents application for a writ of preliminary mandatory injunction. The facts are undisputed. In 1996, the Philippine Congress passed Republic Act No. 8189, otherwise known as the "Voter's Registration Act of 1996," providing for the modernization and computerization of the voters registration list and the appropriate of funds therefor "in order to establish a clean, complete, permanent and updated list of voters."[4] Pursuant thereto, the Commission on Elections (COMELEC) promulgated Resolution No. 00-0315[5] approving in principle the Voters Registration and Identifcation System Project (VRIS) Project for brevity). The VRIS Project envisions a computerized database system for the May 2004 Elections. The idea is to have a national registration of voters whereby each registrants fngerprints will be digitally entered into the system and upon completion of registration, compared and matched with other entries to eliminate double entries. A tamper-proof and counterfeit-resistant voters identifcation card will then be issues to each registrant as a visual record of the registration. On September 9, 1999, the COMELEC issued invitations to pre-qualify and bid for the supply and installations of information technology equipment and ancillary services for its VRIS Project.[6] Private respondent Photokina Marketing Corporation (PHOTOKINA) pre-qualifed and was allowed to participate as one of the bidders. After the public bidding was conducted, PHOTOKINAs bid in the amount of P6.588 Billion Pesos garnered the highest total weighted score and was declared the winning bidder. Thus, on September 28, 2000, the COMELEC issued Resolution No. 3252[7] approving the Notice of Award to PHOTOKINA, which, in turn, immediately accepted the same. The parties then proceeded to formalize the contract, with Commissioner Mehol K. Sadain and Atty. Rodrigo D. Sta. Ana, acting as negotiators for the COMELEC and PHOTOKINA, respectively. However, under Republic Act No. 8760[8] the budget appropriated by Congress for the COMELECs modernization project was only One (1) Billion Pesos and that the actual available funds under the Certifcate of Availability of Funds (CAF) issued by the Chief Accountant of the COMELEC was only P1.2 Billion Pesos.

In December 2000, then COMELEC Chairman Harriet O. Demetriou issued a memorandum to the COMELEC en banc expressing her objections to the contract. Commissioner Sadain, for his part, submitted a draft of the contract[9] providing a price that would not exceed the certifed available appropriation but covering only Phase I of the VRIS Project, i.e., issuance of registration cards for 1,000,000 voters in certain areas only.[10] Under the draft, the "subsequent completion of the whole project shall be agreed upon in accordance with the Bid Documents and the annual funds available for it." [11] On February 2, 2001, the term of former Chairman Demetriou and those of Commissioners Julio F. Desamito and Teresita Dy-Liacco Flores expired. Appointed as their successors were Alfredo L. Benipayo as Chairman and Resurreccion Z. Borra and Florentino A. Tuason, Jr. as Commissioners. Meanwhile, PHOTOKINA, as the winning bidder, wrote several letters to the COMELEC requesting the formal execution of the contract, but to no avail.[12] Then Chairman Benipayo, through various press releases and public statements, announced that the VRIS Project has been "scrapped, dropped, junked, or set aside." He further announced his plan to "reengineer" the entire modernization program of the COMELEC, emphasizing his intention to replace the VRIS Project with his own version, the "Triple E Vision".[13] On October 2, 2001, Senator Edgardo J. Angara directed the creation of a technical working group to "assist the COMELEC in evaluating all programs for the modernization of the COMELEC which will also consider the PHOTOKINA contract as an alternative program and various competing programs for the purpose." Unsatisfed with the adverse turn of events, PHOTOKINA fled with the Regional Trial Court, Branch 215, Quezon City a petition for mandamus, prohibition and damages (with prayer for temporary restraining order, preliminary prohibitory injunction and preliminary mandatory injunction) against the COMELEC and all its Commissioners,[14] docketed as Special Civil Action No. Q- 01- 45405. PHOTOKINA alleged three causes of action: frst, the deliberate refusal of the COMELEC and its Commissioners to formalize the contract rendered nugatory the perfected contract between them; second, in announcing that the VRIS Project has been junked and that he has plans to re-engineer the COMELECs entire modernization program, Chairman Benipayo committed grave abuse of discretion; and third, the COMELECs failure to perform its duty under the contract has caused PHOTOKINA to incur damages since it has spent substantial time and resources in the preparation of the bid and the draft contract. In support of its application for writs of preliminary prohibitory and mandatory injunction, PHOTOKINA adopted the evidence it adduced during the hearing of its application for the issuance of a temporary restraining order. On December 19, 2001, respondent Judge Ma. Luisa Quijano-Padilla issued the frst assailed Resolution granting PHOTOKINAs application for a writ of preliminary prohibitory injunction, thus: "WHEREFORE, premises considered, the Court resolves to: (1) grant the application for the issuance of a writ of preliminary prohibitory injunction; and (2) deny the application for the issuance of a writ of preliminary mandatory injunction. Accordingly, let a writ of preliminary prohibitory injunction issue enjoining respondents, their agents, successors and assigns from replacing the VRIS Project upon petitioners posting of a bond in the amount of P20,000,000.00, which bond shall answer for whatever damages which may be sustained by reason of the issuance of the said writ, if it turns out that the plaintiffs are not entitled thereto. SO ORDERED"[15] Both parties fled their respective motions for reconsideration. PHOTOKINA reiterated its plea for a writ of preliminary mandatory injunction.[16] For their part, the COMELEC and its Commissioners, through the Solicitor General, prayed that the writ of preliminary prohibitory injunction be set aside and that the petition for mandamus, prohibition and damages be dismissed.[17] On February 8, 2002, respondent judge issued the second assailed Resolution denying the COMELECs Omnibus Motion and, this time, granting PHOTOKINAs application for a writ of preliminary mandatory injunction, thus:

"WHEREFORE, premises considered, this Court resolves to: (1) deny Respondents Omnibus Motion for the dismissal of this case and for the reconsideration of this Courts Resolution granting the writ of preliminary prohibitory injunction; (2) grant Petitioners Motion dated January 2, 2002 insofar as it prays for the issuance of a writ of preliminary mandatory injunction; (3) Grant the prayer for the reduction of the preliminary prohibitory injunction bond from P20,000,000.00 to P10,000,000.00; (4) Clarify its Resolution dated December 19, 2001 to the extent that the writ of preliminary prohibitory injunction will also enjoin Respondents, their agents, successors and assigns from disregarding the contract for the VRIS Project between Petitioner and Respondent COMELEC; (5) deny Petitioners motion to declare Respondents in default. "Accordingly, let a writ of preliminary mandatory injunction issue directing all respondent Commissioners to immediately resume negotiations to formalize the execution of the contract with Petitioner for the VRIS Project upon petitioners posting of a bond, separate from the above bond for the writ of preliminary prohibitory injunction, in the amount of P20,000,000.00, which bond shall answer for whatever damages that may be sustained by reason of the issuance of the said writ, if it turns out that Petitioner is not entitled thereto. "SO ORDERED."[18] Hence, the instant petition for certiorari fled by the Offce of the Solicitor General (OSG) in behalf of then COMELEC Chairman Alfredo L. Benipayo and Commissioners Resurreccion Z. Borra and Florentino A. Tuason, Jr.. Petitioners contend that: (1) a petition for mandamus and prohibition does not lie to enforce contractual obligations, hence, PHOTOKINAs proper recourse before the Regional Trial Court should have been an action for specifc performance; (2) respondent judge, by issuing the injunctive writs, already assumed that the VRIS Project was lawfully awarded by the COMELEC to PHOTOKINA, and that there is a valid perfected contract between them, thus, manifesting her prejudgment; and (3) injunctive writs should not be issued when an action for damages can adequately compensate for the injuries. Petitioners pray that the two assailed Resolutions be nullifed and Special Civil Action No. Q-01-45405 be dismissed outright.[19] On February 21, 2002, the majority of the COMELEC Commissioners -- Luzviminda G. Tancangco, Rufno S.B. Javier, Ralph C. Lantion and Mehol K. Sadain fled with this Court a Manifestation[20] that "the Chairman and the two Commissioners who fled the instant Petition acted without authority from the COMELEC en banc to take such action." PHOTOKINA fled a Comment with Motion to Dismiss,[21] the present petition, on two procedural grounds. First, the petition violates the doctrine of hierarchy of courts. And second, the OSG has no authority and/or standing to fle the petition considering that the petitioners have not been authorized by the COMELEC en banc to take such action. Without the concurrence of at least a majority of the members of the COMELEC, neither petitioners nor the OSG could fle the petition in behalf of the COMELEC. In refutation of petitioners arguments, PHOTOKINA contends that mandamus is an appropriate remedy since what is involved in Special Civil Action No. Q-01-45405 is the performance of a ministerial duty. Citing Isada vs. Bocar,[22] PHOTOKINA maintains that mandamus may be availed of by private parties to compel public offcers to act on a contract entered into pursuant to law. In its Supplemental Comment,[23] PHOTOKINA invites the Courts attention to Metropolitan Manila Development Authority vs. Jancom Environmental Corporation[24]whereby the winning bidder was afforded every right to seek enforcement of its perfected contract with the government. The petition is impressed with merit. Initially, we must resolve the procedural roadblocks. PHOTOKINA alleges that the OSG has no standing to fle the present petition since its legal position is contrary to that espoused by the majority of the COMELEC Commissioners. This is a leap to a non-sequitur conclusion. The OSG is an independent offce. Its hands are not shackled to the cause of its client agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld.[25] This is regardless of the fact that what it perceived as the "best interest of the government" runs counter to its client agencys position.[26] Endowed with a broad perspective that spans the legal interest of virtually the entire government offcialdom, the OSG may transcend the parochial concerns of a particular client agency and instead, promote and protect the public weal.[27] Our ruling in Orbos vs. Civil Service Commission,[28] is relevant, thus:

"x x x It is incumbent upon him (Solicitor General) to present to the court what he considers would legally uphold the best interest of the government although it may run counter to a clients position. x x x. "In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by fling this petition. He cannot be disqualifed from appearing for the petitioner even if in so doing his representation runs against the interests of the CSC. "This is not the frst time that the Offce of the Solicitor General has taken a position adverse to his clients like the CSC, the National Labor Relations Commission, among others, and even the People of the Philippines. x x x" (Emphasis supplied) Hence, while petitioners stand is contrary to that of the majority of the Commissioners, still, the OSG may represent the COMELEC as long as in its assessment, such would be for the best interest of the government. For, indeed, in the fnal analysis, the client of the OSG is not the agency but no less than the Republic of the Philippines in whom the plenum of sovereignty resides.[29] Moreover, it must be emphasized that petitioners are also public offcials entitled to be represented by the OSG. Under Executive Order No. 292[30] and Presidential Decree No. 478,[31] the OSG is the lawyer of the government, its agencies and instrumentalities, and its offcials or agents. Surely, this mandate includes the three petitioners[32] who have been impleaded as public respondents in Special Civil Action No. Q-0145405. Anent the alleged breach of the doctrine of hierarchy of courts, suffce it to say that it is not an iron-clad dictum. On several instances where this Court was confronted with cases of national interest and of serious implications, it never hesitated to set aside the rule and proceed with the judicial determination of the case.[33] The case at bar is of similar import. It is in the interest of the State that questions relating to government contracts be settled without delay. This is more so when the contract, as in this case, involves the disbursement of public funds and the modernization of our countrys election process, a project that has long been overdue. We now resolve the following substantive issues: 1) Is a petition for mandamus the appropriate remedy to enforce contractual obligations? and 2) May a successful bidder compel a government agency to formalize a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress for the project? I No rule of law is better settled than that mandamus does not lie to enforce the performance of contractual obligations.[34] As early as 1924, Justice Street, in Quiogue vs. Romualdez,[35] already set forth the justifcation of this rule, thus: "Upon the facts above stated we are of the opinion that the writ of mandamus is not the appropriate, or even an admissible remedy. It is manifest that whatever rights the petitioner may have, upon the facts stated, are derived from her contract with the city; and no rule of law is better settled than that mandamus never lies to enforce the performance of private contracts. x x x The petitioners remedy, if any she has, is by an original action in the Court of First Instance to compel the city to pay the agreed price or to pay damages for the breach of contract. "x x x. As said in Lowe vs. Phelps (14 Bush, 642): It must, therefore, appear upon every application for a mandamus that it is the legal duty of the respondent to do that which it is sought to compel him to do, and that he has upon proper application refused to perform that duty. (Citing numerous authorities). "It was not intended to aid a plaintiff in the enforcement of a mere contract right, or to take the place of the other remedies provided by law for the adjudication of disputed claims. Looking at the case from the standpoint of appellant, it involves nothing more than an ordinary breach of contract. If, as contended, the appellant had a valid contract with the school board, it also had an adequate remedy at law to recover damages for its breach; and to permit the writ of mandamus to be used for the purpose of enforcing a mere

contract right would be a wide departure from the settled practice in respect to the character of cases in which relief by mandamus may be obtained. "In Parrott vs. City of Bridgeport (44 Conn., 180), the writ was refused where the petitioner sought to compel a city to construct a public street in a certain manner agreeably to the terms of a special agreement between the petitioner and the city. In the course of the opinion the court said: "* * * The duty, therefore, if any, which rests upon the city in this regard, is one which it owes to the petitioner as an individual, not to the public, and the special contract is the foundation upon which it rests. But the writ of mandamus has never been considered as an appropriate remedy for the enforcement of contract rights of a private and personal nature and obligations which rest wholly upon contract and which involve no questions of public trusts or offcial duty. Indeed, strictly speaking, it never lies where the party aggrieved has adequate remedy at law, and its aid is only to be invoked to prevent an absolute failure of justice in cases where ordinary legal processes furnish no relief." (Emphasis supplied) The passage of time has not eroded the wisdom of the foregoing rule. Its invocation by this Court in Province of Pangasinan vs. Reparation Commission,[36] Aprueba vs. Ganzon,[37] City of Manila vs. Posadas, [38] Jacinto vs. Director of Lands,[39] National Marketing Corporation vs. Cloribel,[40] Astudillo vs. The Board of Directors of People's Homesite and Housing Corporation,[41] and Sharp International Marketing vs. Court of Appeals, [42] virtually reinforces the rule. The present case is our latest addition to the above catena of jurisprudence. We carefully read the pleadings fled in Special Civil Action No. Q-01-45405 and we are convinced that what PHOTOKINA sought to enforce therein are its rights under the accepted bid proposal. Its petition alleged that notwithstanding the COMELECs issuance of a Notice of Award and its (PHOTOKINAs) subsequent acceptance thereof, the COMELEC still refused to formalize the contract. As a relief, PHOTOKINA prayed that after trial, petitioners be directed "to review and fnalize the formal contract" and to "implement the VRIS Project."[43] Petitioners, on their part, specifcally denied the existence of a perfected contract and asserted that even if there was one, the same is null and void for lack of proper appropriation. Petitioners labeled the contract as illegal and against public policy. Akin to our rulings cited above, we hold that mandamus is not the proper recourse to enforce the COMELECs alleged contractual obligations with PHOTOKINA. It has other adequate remedy in law. Moreover, worth stressing is the judicial caution that mandamus applies as a remedy only where petitioners right is founded clearly in law and not when it is doubtful.[44] In varying language, the principle echoed and reechoed is that legal rights may be enforced by mandamus only if those rights are well-defned, clear and certain.[45] Here, the alleged contract, relied upon by PHOTOKINA as source of its rights which it seeks to be protected, is being disputed, not only on the ground that it was not perfected but also because it is illegal and against public policy. Of course, there are cases in which the writ of mandamus has been used to compel public offcers to perform certain acts, but it will be generally observed that in such cases, the contracts have been completely performed by the petitioner, and nothing remained to be done except for the government to make compensation. These exceptional cases are cited in Isada vs. Bocar[46] where the act of the respondent public offcer has the effect of setting aside contracts already in the process of consummation. In contrast with Isada, the alleged contract here has not yet been fully performed by PHOTOKINA; and though it avers readiness to perform, petitioners raised serious questions as to its validity. Their posture is tenable. II To spare PHOTOKINA the drudgery of a fruitless pursuit, we deem it appropriate to lay down the principles governing government contracts and to apply them to the instant case. Meanwhile, as PHOTOKINA will later on deduce from the discussion, the contract subject of this controversy is one that can be slain in sight for being patently void and unenforceable. Enshrined in the 1987 Philippine Constitution is the mandate that "no money shall be paid out of the Treasury except in pursuance of an appropriation made by law."[47] Thus, in the execution of government contracts, the precise import of this constitutional restriction is to require the various agencies to limit their expenditures within the appropriations made by law for each fscal year. Complementary to the foregoing constitutional injunction are pertinent provisions of law and administrative issuances that are designed to effectuate the above mandate in a detailed manner.[48] Sections 46 and 47, Chapter 8, Subtitle B, Title I, Book V of Executive Order No. 292, otherwise known as

"Administrative Code of 1987," provide: "SEC. 46. Appropriation Before Entering into Contract. - (1) No contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor, the unexpended balance of which, free of other obligations, is suffcient to cover the proposed expenditure; and x x x "SEC. 47. Certifcate Showing Appropriation to Meet Contract. - Except in the case of a contract for personal service, for supplies for current consumption or to be carried in stock not exceeding the estimated consumption for three (3) months, or banking transactions of government-owned or controlled banks, no contract involving the expenditure of public funds by any government agency shall be entered into or authorized unless the proper accounting offcial of the agency concerned shall have certifed to the offcer entering into the obligation that funds have been duly appropriated for the purpose and that the amount necessary to cover the proposed contract for the current calendar year is available for expenditure on account thereof, subject to verifcation by the auditor concerned. The certifcate signed by the proper accounting offcial and the auditor who verifed it, shall be attached to and become an integral part of the proposed contract, and the sum so certifed shall not thereafter be available for expenditure for any other purpose until the obligation of the government agency concerned under the contract is fully extinguished. It is quite evident from the tenor of the language of the law that the existence of appropriations and the availability of funds are indispensable pre-requisites to or conditions sine qua non for the execution of government contracts. The obvious intent is to impose such conditions as a priori requisites to the validity of the proposed contract.[49] Using this as our premise, we cannot accede to PHOTOKINAs contention that there is already a perfected contract. While we held in Metropolitan Manila Development Authority vs. Jancom Environmental Corporation[50] that "the effect of an unqualifed acceptance of the offer or proposal of the bidder is to perfect a contract, upon notice of the award to the bidder," however, such statement would be inconsequential in a government where the acceptance referred to is yet to meet certain conditions. To hold otherwise is to allow a public offcer to execute a binding contract that would obligate the government in an amount in excess of the appropriations for the purpose for which the contract was attempted to be made. [51] This is a dangerous precedent. In the case at bar, there seems to be an oversight of the legal requirements as early as the bidding stage. The frst step of a Bids and Awards Committee (BAC) is to determine whether the bids comply with the requirements. The BAC shall rate a bid "passed" only if it complies with all the requirements and the submitted price does not exceed the approved budget for the contract."[52] Extant on the record is the fact that the VRIS Project was awarded to PHOTOKINA on account of its bid in the amount of P6.588 Billion Pesos. However, under Republic Act No. 8760,[53] the only fund appropriated for the project was P1 Billion Pesos and under the Certifcation of Available Funds[54] (CAF) only P1.2 Billion Pesos was available. Clearly, the amount appropriated is insuffcient to cover the cost of the entire VRIS Project. There is no way that the COMELEC could enter into a contract with PHOTOKINA whose accepted bid was way beyond the amount appropriated by law for the project. This being the case, the BAC should have rejected the bid for being excessive[55] or should have withdrawn the Notice of Award on the ground that in the eyes of the law, the same is null and void.[56] The objections of then Chairman Demetriou to the implementation of the VRIS Project, ardently carried on by her successor Chairman Benipayo, are therefore in order. Even the draft contract submitted by Commissioner Sadain, that provides for a contract price in the amount of P1.2 Billion Pesos is unacceptable. Indeed, we share the observation of former Chairman Demetriou that it circumvents the statutory requirements on government contracts. While the contract price under the draft contract[57] is only P1.2 Billion and, thus, within the certifed available funds, the same covers only Phase I of the VRIS Project, i.e., the issuance of identifcation cards for only 1,000,000 voters in specifed areas.[58] In effect, the implementation of the VRIS Project will be "segmented" or "chopped" into several phases. Not only is such arrangement disallowed by our budgetary laws and practices, it is also disadvantageous to the COMELEC because of the uncertainty that will loom over its modernization project for an indefnite period of time. Should Congress fail to appropriate the amount necessary for the completion of the entire project, what good will the accomplished Phase I serve? As expected, the project failed "to sell" with the Department of Budget and Management. Thus, Secretary Benjamin Diokno, per his letter of December 1, 2000, declined the COMELECs request for the issuance of the Notice of Cash Availability (NCA) and a multi-year obligational authority to assume payment of the total VRIS Project for lack of legal basis.[59] Corollarily, under Section 33 of R.A. No. 8760, no agency shall enter into a multi-year contract without a multi-year obligational authority, thus:

"SECTION 33. Contracting Multi-Year Projects. - In the implementation of multi-year projects, no agency shall enter into a multi-year contract without a multi-year Obligational Authority issued by the Department of Budget and Management for the purpose. Notwithstanding the issuance of the multi-year Obligational Authority, the obligation to be incurred in any given calendar year, shall in no case exceed the amount programmed for implementation during said calendar year." Petitioners are justifed in refusing to formalize the contract with PHOTOKINA. Prudence dictated them not to enter into a contract not backed up by suffcient appropriation and available funds. Defnitely, to act otherwise would be a futile exercise for the contract would inevitably suffer the vice of nullity. In Osmea vs. Commission on Audit,[60] this Court held: "The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entered into unless there is an appropriation therefor and the proper accounting offcial of the agency concerned shall have certifed to the offcer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover the proposed contract for the current fscal year is available for expenditure on account thereof. Any contract entered into contrary to the foregoing requirements shall be VOID. "Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certifed by the City Treasurer. Hence, the contract was properly declared void and unenforceable in COAs 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, that: The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the execution of any government contract involving the expenditure of public funds by all government agencies at all levels. Such contracts are not to be considered as fnal or binding unless such a certifcation as to funds availability is issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance appropriation is thus essential to government liability on contracts (Zobel vs. City of Manila, 47 Phil. 169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec. 85 of PD 1445 and is null and void by virtue of Sec.87." Verily, the contract, as expressly declared by law, is inexistent and void ab initio.[61] his is to say that the proposed contract is without force and effect from the very beginning or from its incipiency, as if it had never been entered into, and hence, cannot be validated either by lapse of time or ratifcation.[62] Of course, we are not saying that the party who contracts with the government has no other recourse in law. The law itself affords him the remedy. Section 48 of E.O. No. 292 explicitly provides that any contract entered into contrary to the above-mentioned requirements shall be void, and "the offcers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties." So when the contracting offcer transcends his lawful and legitimate powers by acting in excess of or beyond the limits of his contracting authority, the Government is not bound under the contract. It would be as if the contract in such case were a private one, whereupon, he binds only himself, and thus, assumes personal liability thereunder.[63] Otherwise stated, the proposed contract is unenforceable as to the Government. While this is not the proceeding to determine where the culpability lies, however, the constitutional mandate cited above constrains us to remind all public offcers that public offce is a public trust and all public offcers must at all times be accountable to the people. The authority of public offcers to enter into government contracts is circumscribed with a heavy burden of responsibility. In the exercise of their contracting prerogative, they should be the frst judges of the legality, propriety and wisdom of the contract they entered into. They must exercise a high degree of caution so that the Government may not be the victim of ill-advised or improvident action.[64] In fne, we rule that PHOTOKINA, though the winning bidder, cannot compel the COMELEC to formalize the contract. Since PHOTOKINAs bid is beyond the amount appropriated by Congress for the VRIS Project, the proposed contract is not binding upon the COMELEC and is considered void; and that in issuing the questioned preliminary writs of mandatory and prohibitory injunction and in not dismissing Special Civil Action No. Q-01-45405, respondent judge acted with grave abuse of discretion. Petitioners cannot be compelled by a writ of mandamus to discharge a duty that involves the exercise of judgment and discretion, especially where disbursement of public funds is concerned.

WHEREFORE, the petition is GRANTED. The Resolutions dated December 19, 2001 and February 7, 2002 issued by respondent Judge Padilla are SET ASIDE. Special Civil Action No. Q-01-45405 is hereby ordered DISMISSED. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Carpio, AustriaMartinez, Corona, Carpio-Morales, and Callejo, Sr., JJ., concur.

EN BANC [G.R. No. 128055. April 18, 2001]

MIRIAM DEFENSOR SANTIAGO, petitioner, vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND MINITA V. CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE FIRST DIVISION, respondents. DECISION VITUG, J.: The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in connection with pending criminal cases fled against her for alleged violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The instant case arose from complaints fled by a group of employees of the Commission of Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over the case from Investigator Gualberto dela Llana after having been constituted by the Deputy Ombudsman for Luzon upon petitioners request, came up with a resolution which it referred, for approval, to the Offce of the Special Prosecutor (OSP) and the Ombudsman. In his Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to fle the appropriate informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the informations for clearance; approved, forthwith, three informations were fled on even date. In Criminal Case No. 16698 fled before the Sandiganbayan, petitioner was indicted thusly: That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila, Philippines and within the jurisdiction of this Honorable Court, accused MIRIAM DEFENSOR-SANTIAGO, a public offcer, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality in the exercise of her offcial functions, did then and there willfully, unlawfully and criminally approve the application for legalization of the stay of the following aliens: Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive Order no. 324 dated April 13, 1988 which prohibits the legalization of said disqualifed aliens knowing fully well that said aliens are disqualifed, thereby giving unwarranted benefts to said aliens whose stay in the Philippines was unlawfully legalized by said accused.[1] Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and the other for libel, were fled with the Regional Trial Court of Manila, docketed, respectively, No. 91-94555 and no. 9194897. Pursuant to the information fled with the Sandiganbayan, Presiding Justice Francis E. Garchitorena issued an order for the arrest of petitioner, fxing the bail at Fifteen Thousand (P15,000.00) Pesos. Petitioner posted a cash bail without need for physical appearance as she was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan granted her provisional liberty until 05 June 1991 or until her physical condition would warrant her physical appearance in court. Upon manifestation by the Ombudsman, however, that petitioner was able to come unaided to his offce on 20 May 1991, Sandiganbayan issued an order setting the arraignment on 27 May 1991. Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be allowed provisional liberty upon a recognizance.

On 24 May 1991, petitioner fled, concurrently, a Petition for Certiorari with Prohibition and Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the petition issued a temporary restraining order. The Sandiganbayan, thus, informed, issued an order deferring petitioners arraignment and the consideration of her motion to cancel the cash bond until further advice from the court. On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the temporary restraining order. The subsequent motion for reconsideration fled by petitioner proved unavailing. On 06 July 1992, in the wake of media reports announcing petitioners intention to accept a fellowship from the John F. Kennedy School of Government at Harvard University, the Sandiganbayan issued an order to enjoin petitioner from leaving the country. On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena from the case and to defer her arraignment pending action on her motion to inhibit. On 09 November 1992, her motion was denied by the Sandiganbayan. The following day, she fled anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary Injunction with the Court, docketed G.R. No. 99289-90. At the same time, petitioner fled a motion for bill of particulars with the Sandiganbayan asseverating that the names of the aliens whose applications she purportedly approved and thereby supposedly extended undue advantage were conspicuously omitted in the complaint. The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset petitioners arraignment not later than fve days from receipt of notice thereof. On 07 December 1992, the OSP and the Ombudsman fled with the Sandiganbayan a motion to admit thirty-two amended informations. Petitioner moved for the dismissal of the 32 informations. The court, in its 11th March 1993 resolution, denied her motion to dismiss the said informations and directed her to post bail on the criminal cases, docketed Criminal Case No. 18371-18402, fled against her. Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R. No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not to disqualify its Presiding Justice, as well as its 14 th March 1993 resolution admitting the 32 Amended Informations, and seeking the nullifcation thereof. Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena to cease and desist from sitting in the case, as well as from enforcing the 11 th March 1993 resolution ordering petitioner to post bail bonds for the 32 amended informations, and from proceeding with her arraignment on 12 April 1993 until the matter of his disqualifcation would have been resolved by the Court. On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32 informations were consolidated into one information under Criminal Case No. 16698. Petitioner, then fled with the Sandiganbayan a Motion to Redetermine probable Cause and to dismiss or quash said information. Pending the resolution of this incident, the prosecution fled on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner. On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995. In the interim, the Sandiganbayan directed petitioner to fle her opposition to the 31 st July 1995 motion for the prosecution within ffteen (15) days from receipt thereof. On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of its 03 rd August 1995 order which would allow the testimony of Pedellaga. The incident, later denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on Certiorari, entitled Miriam DefensorSantiago vs. Sandiganbayan, docketed G.R. No. 123792. On 22 August 1995, petitioner fled her opposition to the motion of the prosecution to suspend her. On 25 January 1996, the Sandiganbayan resolved:

WHEREFORE, for all the foregoing, the Court hereby grants the motion under consideration and hereby suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the Philippines and from any other government position she may be holding at present or hereafter. Her suspension shall be for ninety (90) days only and shall take effect immediately upon notice. Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate President, Senate of the Philippines, Executive House, Taft Ave., Manila, through the Hon. Secretary of the Senate, for the implementation of the suspension herein ordered. The Secretary of the Senate shall inform this court of the action taken thereon within fve (5) days from receipt hereof. The said offcial shall likewise inform this Court of the actual date of implementation of the suspension order as well as the expiry of the ninetieth day thereof so that the same may be lifted at the time.[2] Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a ninetyday preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order. The authority of the Sandiganbayan to order the preventive suspension of an incumbent public offcial charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. Section 13 of the statute provides: SEC. 13. Suspension and loss of benefts. any incumbent public offcer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from offce. Should he be convicted by fnal judgment, he shall lose all retirement or gratuity benefts under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefts which he failed to receive during suspension, unless in the meantime administrative proceedings have been fled against him. In the event that such convicted offcer, who may have already been separated from the service, has already received such benefts he shall be liable to restitute the same to the Government. (As amended by BP Blg. 195, March 16, 1982). In the relatively recent case of Segovia vs. Sandiganbayan,[3] the Court reiterated: The validity of Section 13, R.A. 3019, as amended --- treating of the suspension pendente lite of an accused public offcer --- may no longer be put at issue, having been repeatedly upheld by this Court. xxx xxx xxx

The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective offcials; or permanent or temporary employees, or pertaining to the career or non-career service.[4] It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information fled before it. Once the information is found to be suffcient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be no ifs and buts about it.[5] Explaining the nature of the preventive suspension, the Court in the case of Bayot vs. Sandiganbayan[6] observed: x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the offcial concerned shall be entitled to reinstatement and to the salaries and benefts which he failed to receive during suspension.[7] In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear an unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayans authority to decree the suspension of public offcials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public offcer concerned must be suspended only in the offce where he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word offce would indicate that it applies to any offce which the offcer charged may be holding, and not only the particular offce under which he stands accused.[8] En passan, while the imposition of suspension is not automatic or self-operative as the validity of the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said thatx x x No specifc rules need be laid down for such pre-suspension hearing. Suffce it to state that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the revised Penal Code which would warrant his mandatory suspension from offce under section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x. xxx xxx xxx

Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court. However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is charged do not constitute a violation of the provisions of Rep. Act 3019, or of the provisions on bribery of the revised Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense. In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code.[9] The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in offce could infuence the witnesses or pose a threat to the safety and integrity of the records an other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specifc crime warranting his mandatory suspension from offce under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal procedure.[10] The instant petition is not the frst time that an incident relating to petitioners case before the Sandiganbayan has been brought to this Court. In previous occasions, the Court has been called upon the resolve several other matters on the subject. Thus: (1) In Santiago vs. Vasquez,[11] petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal case No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez,[12] petitioner sought the nullifcation of the hold departure order issued by the Sandiganbayan via a Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set Pending Incident for Hearing; (3) in Santiago vs. Garchitorena,[13] petitioner sought the nullifcation of the resolution, dated 03 March 1993, in Criminal Case No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Garchitorena disqualifed from acting in said criminal case, and the resolution, dated 14 March 1993, which deemed as fled the 32 amended informations against her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan,[14] petitioner assailed the denial by the Sandiganbayan of her motion for her reconsideration from its 03rd August 1995 order allowing the testimony of Pedellaga. In one of these cases,[15] the Court declared: We note that petitioner had previously fled two petitions before us involving Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of the delay in

the preliminary investigation and the fling of the information against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating. Petitioner next claims that the Amended informations did not charge any offense punishable under Section 3 (e) of R.A. No. 3019 because the offcial acts complained of therein were authorized under Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization of spouses and unmarried, minor children of qualifed aliens even though they had arrived in the Philippines after December 31 1983. She concludes that the Sandiganbayan erred in not granting her motion to quash the informations (Rollo, pp. 25-31). In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner admitted hypothetically in her motion that: (1) She was a public offcer; (2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after January 1, 1984; (3) Those aliens were disqualifed; (4) She was cognizant of such fact; and (5) She acted in evident bad faith and manifest partiality in the execution of her offcial functions. The foregoing allegations of fact constitute the elements of the offense defned in Section 3 (e) of R.A. No. 3019.[16] The pronouncement, upholding the validity of the information fled against petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension. The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides that eachx x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.[17] The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by the Senate or the house of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr., vs. Sandiganbayan, et al.,[18] the Court affrmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of congress. The Court ruled: x x x. Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of two-thirds of all its Members subject to the qualifcation that the penalty of suspension, when imposed, should not exceed sixty days is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives. The doctrine of separation of powers by itself may not be deemed to have effectively excluded members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of infuence and effectively prevents one branch from unduly intruding into the internal affairs of either branch. Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of actual controversies involving rights which are legally demandable and enforceable, but also in the determination of 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 provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view[19] that unless an infringement of any specifc Constitutional proscription thereby inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specifc constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself. Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order. Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to render this decision for future guidance on the signifcant issue raised by petitioner. WHEREFORE, the instant petition for certiorari is DISMISSED. No costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, GonzagaReyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

EN BANC [G.R. No. 144104. June 29, 2004]

LUNG CENTER OF THE PHILIPPINES, petitioner, vs. QUEZON CITY and CONSTANTINO P. ROSAS, in his capacity as City Assessor of Quezon City, respondents. DECISION CALLEJO, SR., J.: This is a petition for review on certiorari under Rule 45 of the Rules of Court, as amended, of the Decision[1] dated July 17, 2000 of the Court of Appeals in CA-G.R. SP No. 57014 which affrmed the decision of the Central Board of Assessment Appeals holding that the lot owned by the petitioner and its hospital building constructed thereon are subject to assessment for purposes of real property tax. The Antecedents

The petitioner Lung Center of the Philippines is a non-stock and non-proft entity established on January 16, 1981 by virtue of Presidential Decree No. 1823.[2] It is the registered owner of a parcel of land, particularly described as Lot No. RP-3-B-3A-1-B-1, SWO-04-000495, located at Quezon Avenue corner Elliptical Road, Central District, Quezon City. The lot has an area of 121,463 square meters and is covered by Transfer Certifcate of Title (TCT) No. 261320 of the Registry of Deeds of Quezon City. Erected in the middle of the aforesaid lot is a hospital known as the Lung Center of the Philippines. A big space at the ground foor is being leased to private parties, for canteen and small store spaces, and to medical or professional practitioners who use the same as their private clinics for their patients whom they charge for their professional services. Almost one-half of the entire area on the left side of the building along Quezon Avenue is vacant and idle, while a big portion on the right side, at the corner of Quezon Avenue and Elliptical Road, is being leased for commercial purposes to a private enterprise known as the Elliptical Orchids and Garden Center. The petitioner accepts paying and non-paying patients. It also renders medical services to out-patients, both paying and non-paying. Aside from its income from paying patients, the petitioner receives annual subsidies from the government. On June 7, 1993, both the land and the hospital building of the petitioner were assessed for real property taxes in the amount of P4,554,860 by the City Assessor of Quezon City.[3] Accordingly, Tax Declaration Nos. C021-01226 (16-2518) and C-021-01231 (15-2518-A) were issued for the land and the hospital building, respectively. [4] On August 25, 1993, the petitioner fled a Claim for Exemption[5] from real property taxes with the City Assessor, predicated on its claim that it is a charitable institution. The petitioners request was denied, and a petition was, thereafter, fled before the Local Board of Assessment Appeals of Quezon City (QC-LBAA, for brevity) for the reversal of the resolution of the City Assessor. The petitioner alleged that under Section 28, paragraph 3 of the 1987 Constitution, the property is exempt from real property taxes. It averred that a minimum of 60% of its hospital beds are exclusively used for charity patients and that the major thrust of its hospital operation is to serve charity patients. The petitioner contends that it is a charitable institution and, as such, is exempt from real property taxes. The QC-LBAA rendered judgment dismissing the petition and holding the petitioner liable for real property taxes.[6] The QC-LBAAs decision was, likewise, affrmed on appeal by the Central Board of Assessment Appeals of Quezon City (CBAA, for brevity)[7] which ruled that the petitioner was not a charitable institution and that its real properties were not actually, directly and exclusively used for charitable purposes; hence, it was not entitled to real property tax exemption under the constitution and the law. The petitioner sought relief from the Court of Appeals, which rendered judgment affrming the decision of the CBAA.[8] Undaunted, the petitioner fled its petition in this Court contending that: A. THE COURT A QUO ERRED IN DECLARING PETITIONER AS NOT ENTITLED TO REALTY TAX EXEMPTIONS ON THE GROUND THAT ITS LAND, BUILDING AND

IMPROVEMENTS, SUBJECT OF ASSESSMENT, ARE NOT ACTUALLY, DIRECTLY AND EXCLUSIVELY DEVOTED FOR CHARITABLE PURPOSES. B. WHILE PETITIONER IS NOT DECLARED AS REAL PROPERTY TAX EXEMPT UNDER ITS CHARTER, PD 1823, SAID EXEMPTION MAY NEVERTHELESS BE EXTENDED UPON PROPER APPLICATION. The petitioner avers that it is a charitable institution within the context of Section 28(3), Article VI of the 1987 Constitution. It asserts that its character as a charitable institution is not altered by the fact that it admits paying patients and renders medical services to them, leases portions of the land to private parties, and rents out portions of the hospital to private medical practitioners from which it derives income to be used for operational expenses. The petitioner points out that for the years 1995 to 1999, 100% of its out-patients were charity patients and of the hospitals 282-bed capacity, 60% thereof, or 170 beds, is allotted to charity patients. It asserts that the fact that it receives subsidies from the government attests to its character as a charitable institution. It contends that the exclusivity required in the Constitution does not necessarily mean solely. Hence, even if a portion of its real estate is leased out to private individuals from whom it derives income, it does not lose its character as a charitable institution, and its exemption from the payment of real estate taxes on its real property. The petitioner cited our ruling in Herrera v. QC-BAA[9] to bolster its pose. The petitioner further contends that even if P.D. No. 1823 does not exempt it from the payment of real estate taxes, it is not precluded from seeking tax exemption under the 1987 Constitution. In their comment on the petition, the respondents aver that the petitioner is not a charitable entity. The petitioners real property is not exempt from the payment of real estate taxes under P.D. No. 1823 and even under the 1987 Constitution because it failed to prove that it is a charitable institution and that the said property is actually, directly and exclusively used for charitable purposes. The respondents noted that in a newspaper report, it appears that graft charges were fled with the Sandiganbayan against the director of the petitioner, its administrative offcer, and Zenaida Rivera, the proprietress of the Elliptical Orchids and Garden Center, for entering into a lease contract over 7,663.13 square meters of the property in 1990 for only P20,000 a month, when the monthly rental should be P357,000 a month as determined by the Commission on Audit; and that instead of complying with the directive of the COA for the cancellation of the contract for being grossly prejudicial to the government, the petitioner renewed the same on March 13, 1995 for a monthly rental of only P24,000. They assert that the petitioner uses the subsidies granted by the government for charity patients and uses the rest of its income from the property for the beneft of paying patients, among other purposes. They aver that the petitioner failed to adduce substantial evidence that 100% of its out-patients and 170 beds in the hospital are reserved for indigent patients. The respondents further assert, thus: 13. That the claims/allegations of the Petitioner LCP do not speak well of its record of service. That before a patient is admitted for treatment in the Center, frst impression is that it is pay-patient and required to pay a certain amount as deposit. That even if a patient is living below the poverty line, he is charged with high hospital bills. And, without these bills being frst settled, the poor patient cannot be allowed to leave the hospital or be discharged without frst paying the hospital bills or issue a promissory note guaranteed and indorsed by an infuential agency or person known only to the Center; that even the remains of deceased poor patients suffered the same fate. Moreover, before a patient is admitted for treatment as free or charity patient, one must undergo a series of interviews and must submit all the requirements needed by the Center, usually accompanied by endorsement by an infuential agency or person known only to the Center. These facts were heard and admitted by the Petitioner LCP during the hearings before the Honorable QC-BAA and Honorable CBAA. These are the reasons of indigent patients, instead of seeking treatment with the Center, they prefer to be treated at the Quezon Institute. Can such practice by the Center be called charitable?[10] The Issues

The issues for resolution are the following: (a) whether the petitioner is a charitable institution within the context of Presidential Decree No. 1823 and the 1973 and 1987 Constitutions and Section 234(b) of Republic Act No. 7160; and (b) whether the real properties of the petitioner are exempt from real property taxes. The Courts Ruling

The petition is partially granted.

On the frst issue, we hold that the petitioner is a charitable institution within the context of the 1973 and 1987 Constitutions. To determine whether an enterprise is a charitable institution/entity or not, the elements which should be considered include the statute creating the enterprise, its corporate purposes, its constitution and by-laws, the methods of administration, the nature of the actual work performed, the character of the services rendered, the indefniteness of the benefciaries, and the use and occupation of the properties.[11] In the legal sense, a charity may be fully defned as a gift, to be applied consistently with existing laws, for the beneft of an indefnite number of persons, either by bringing their minds and hearts under the infuence of education or religion, by assisting them to establish themselves in life or otherwise lessening the burden of government.[12] It may be applied to almost anything that tend to promote the well-doing and well-being of social man. It embraces the improvement and promotion of the happiness of man.[13] The word charitable is not restricted to relief of the poor or sick.[14] The test of a charity and a charitable organization are in law the same. The test whether an enterprise is charitable or not is whether it exists to carry out a purpose reorganized in law as charitable or whether it is maintained for gain, proft, or private advantage. Under P.D. No. 1823, the petitioner is a non-proft and non-stock corporation which, subject to the provisions of the decree, is to be administered by the Offce of the President of the Philippines with the Ministry of Health and the Ministry of Human Settlements. It was organized for the welfare and beneft of the Filipino people principally to help combat the high incidence of lung and pulmonary diseases in the Philippines. The raison detre for the creation of the petitioner is stated in the decree, viz: Whereas, for decades, respiratory diseases have been a priority concern, having been the leading cause of illness and death in the Philippines, comprising more than 45% of the total annual deaths from all causes, thus, exacting a tremendous toll on human resources, which ailments are likely to increase and degenerate into serious lung diseases on account of unabated pollution, industrialization and unchecked cigarette smoking in the country; Whereas, the more common lung diseases are, to a great extent, preventable, and curable with early and adequate medical care, immunization and through prompt and intensive prevention and health education programs; Whereas, there is an urgent need to consolidate and reinforce existing programs, strategies and efforts at preventing, treating and rehabilitating people affected by lung diseases, and to undertake research and training on the cure and prevention of lung diseases, through a Lung Center which will house and nurture the above and related activities and provide tertiary-level care for more diffcult and problematical cases; Whereas, to achieve this purpose, the Government intends to provide material and fnancial support towards the establishment and maintenance of a Lung Center for the welfare and beneft of the Filipino people.[15] The purposes for which the petitioner was created are spelled out in its Articles of Incorporation, thus: SECOND: That the purposes for which such corporation is formed are as follows:

1. To construct, establish, equip, maintain, administer and conduct an integrated medical institution which shall specialize in the treatment, care, rehabilitation and/or relief of lung and allied diseases in line with the concern of the government to assist and provide material and fnancial support in the establishment and maintenance of a lung center primarily to beneft the people of the Philippines and in pursuance of the policy of the State to secure the well-being of the people by providing them specialized health and medical services and by minimizing the incidence of lung diseases in the country and elsewhere. 2. To promote the noble undertaking of scientifc research related to the prevention of lung or pulmonary ailments and the care of lung patients, including the holding of a series of relevant congresses, conventions, seminars and conferences; 3. To stimulate and, whenever possible, underwrite scientifc researches on the biological, demographic, social, economic, eugenic and physiological aspects of lung or pulmonary diseases and their control; and to collect and publish the fndings of such research for public consumption; 4. To facilitate the dissemination of ideas and public acceptance of information on lung consciousness or

awareness, and the development of fact-fnding, information and reporting facilities for and in aid of the general purposes or objects aforesaid, especially in human lung requirements, general health and physical ftness, and other relevant or related felds; 5. To encourage the training of physicians, nurses, health offcers, social workers and medical and technical personnel in the practical and scientifc implementation of services to lung patients; 6. To assist universities and research institutions in their studies about lung diseases, to encourage advanced training in matters of the lung and related felds and to support educational programs of value to general health; 7. To encourage the formation of other organizations on the national, provincial and/or city and local levels; and to coordinate their various efforts and activities for the purpose of achieving a more effective programmatic approach on the common problems relative to the objectives enumerated herein; 8. To seek and obtain assistance in any form from both international and local foundations and organizations; and to administer grants and funds that may be given to the organization; 9. To extend, whenever possible and expedient, medical services to the public and, in general, to promote and protect the health of the masses of our people, which has long been recognized as an economic asset and a social blessing; 10. To help prevent, relieve and alleviate the lung or pulmonary affictions and maladies of the people in any and all walks of life, including those who are poor and needy, all without regard to or discrimination, because of race, creed, color or political belief of the persons helped; and to enable them to obtain treatment when such disorders occur; 11. To participate, as circumstances may warrant, in any activity designed and carried on to promote the general health of the community; 12. To acquire and/or borrow funds and to own all funds or equipment, educational materials and supplies by purchase, donation, or otherwise and to dispose of and distribute the same in such manner, and, on such basis as the Center shall, from time to time, deem proper and best, under the particular circumstances, to serve its general and non-proft purposes and objectives; 13. To buy, purchase, acquire, own, lease, hold, sell, exchange, transfer and dispose of properties, whether real or personal, for purposes herein mentioned; and 14. To do everything necessary, proper, advisable or convenient for the accomplishment of any of the powers herein set forth and to do every other act and thing incidental thereto or connected therewith.[16] Hence, the medical services of the petitioner are to be rendered to the public in general in any and all walks of life including those who are poor and the needy without discrimination. After all, any person, the rich as well as the poor, may fall sick or be injured or wounded and become a subject of charity.[17] As a general principle, a charitable institution does not lose its character as such and its exemption from taxes simply because it derives income from paying patients, whether out-patient, or confned in the hospital, or receives subsidies from the government, so long as the money received is devoted or used altogether to the charitable object which it is intended to achieve; and no money inures to the private beneft of the persons managing or operating the institution.[18] In Congregational Sunday School, etc. v. Board of Review,[19] the State Supreme Court of Illinois held, thus: [A]n institution does not lose its charitable character, and consequent exemption from taxation, by reason of the fact that those recipients of its benefts who are able to pay are required to do so, where no proft is made by the institution and the amounts so received are applied in furthering its charitable purposes, and those benefts are refused to none on account of inability to pay therefor. The fundamental ground upon which all exemptions in favor of charitable institutions are based is the beneft conferred upon the public by them, and a consequent relief, to some extent, of the burden upon the state to care for and advance the interests of its citizens.[20]

As aptly stated by the State Supreme Court of South Dakota in Lutheran Hospital Association of South Dakota v. Baker:[21] [T]he fact that paying patients are taken, the profts derived from attendance upon these patients being exclusively devoted to the maintenance of the charity, seems rather to enhance the usefulness of the institution to the poor; for it is a matter of common observation amongst those who have gone about at all amongst the suffering classes, that the deserving poor can with diffculty be persuaded to enter an asylum of any kind confned to the reception of objects of charity; and that their honest pride is much less wounded by being placed in an institution in which paying patients are also received. The fact of receiving money from some of the patients does not, we think, at all impair the character of the charity, so long as the money thus received is devoted altogether to the charitable object which the institution is intended to further.[22] The money received by the petitioner becomes a part of the trust fund and must be devoted to public trust purposes and cannot be diverted to private proft or beneft.[23] Under P.D. No. 1823, the petitioner is entitled to receive donations. The petitioner does not lose its character as a charitable institution simply because the gift or donation is in the form of subsidies granted by the government. As held by the State Supreme Court of Utah in Yorgason v. County Board of Equalization of Salt Lake County:[24] Second, the government subsidy payments are provided to the project. Thus, those payments are like a gift or donation of any other kind except they come from the government. In both Intermountain Health Care and the present case, the crux is the presence or absence of material reciprocity. It is entirely irrelevant to this analysis that the government, rather than a private benefactor, chose to make up the defcit resulting from the exchange between St. Marks Tower and the tenants by making a contribution to the landlord, just as it would have been irrelevant in Intermountain Health Care if the patients income supplements had come from private individuals rather than the government. Therefore, the fact that subsidization of part of the cost of furnishing such housing is by the government rather than private charitable contributions does not dictate the denial of a charitable exemption if the facts otherwise support such an exemption, as they do here.[25] In this case, the petitioner adduced substantial evidence that it spent its income, including the subsidies from the government for 1991 and 1992 for its patients and for the operation of the hospital. It even incurred a net loss in 1991 and 1992 from its operations. Even as we fnd that the petitioner is a charitable institution, we hold, anent the second issue, that those portions of its real property that are leased to private entities are not exempt from real property taxes as these are not actually, directly and exclusively used for charitable purposes. The settled rule in this jurisdiction is that laws granting exemption from tax are construed strictissimi juris against the taxpayer and liberally in favor of the taxing power. Taxation is the rule and exemption is the exception. The effect of an exemption is equivalent to an appropriation. Hence, a claim for exemption from tax payments must be clearly shown and based on language in the law too plain to be mistaken.[26] As held in Salvation Army v. Hoehn:[27] An intention on the part of the legislature to grant an exemption from the taxing power of the state will never be implied from language which will admit of any other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used, for it is a well settled principle that, when a special privilege or exemption is claimed under a statute, charter or act of incorporation, it is to be construed strictly against the property owner and in favor of the public. This principle applies with peculiar force to a claim of exemption from taxation . [28] Section 2 of Presidential Decree No. 1823, relied upon by the petitioner, specifcally provides that the petitioner shall enjoy the tax exemptions and privileges: SEC. 2. TAX EXEMPTIONS AND PRIVILEGES. Being a non-proft, non-stock corporation organized primarily to help combat the high incidence of lung and pulmonary diseases in the Philippines, all donations, contributions, endowments and equipment and supplies to be imported by authorized entities or persons and by the Board of Trustees of the Lung Center of the Philippines, Inc., for the actual use and beneft of the Lung Center, shall be exempt from income and gift taxes, the same further deductible in full for the purpose of

determining the maximum deductible amount under Section 30, paragraph (h), of the National Internal Revenue Code, as amended. The Lung Center of the Philippines shall be exempt from the payment of taxes, charges and fees imposed by the Government or any political subdivision or instrumentality thereof with respect to equipment purchases made by, or for the Lung Center.[29] It is plain as day that under the decree, the petitioner does not enjoy any property tax exemption privileges for its real properties as well as the building constructed thereon. If the intentions were otherwise, the same should have been among the enumeration of tax exempt privileges under Section 2: 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 principle that what is expressed puts an end to that which is implied. Expressium 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. ... 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 ones own voluntary act and not upon that of others. They proceed from the premise that the legislature would not have made specifed enumeration in a statute had the intention been not to restrict its meaning and confne its terms to those expressly mentioned.[30] The exemption must not be so enlarged by construction since the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be intended beyond what was meant.[31] Section 28(3), Article VI of the 1987 Philippine Constitution provides, thus: (3) Charitable institutions, churches and parsonages or convents appurtenant thereto, mosques, non-proft cemeteries, and all lands, buildings, and improvements, actually, directly and exclusively used for religious, charitable or educational purposes shall be exempt from taxation.[32] The tax exemption under this constitutional provision covers property taxes only.[33] As Chief Justice Hilario G. Davide, Jr., then a member of the 1986 Constitutional Commission, explained: . . . what is exempted is not the institution itself . . .; those exempted from real estate taxes are lands, buildings and improvements actually, directly and exclusively used for religious, charitable or educational purposes.[34] Consequently, the constitutional provision is implemented by Section 234(b) of Republic Act No. 7160 (otherwise known as the Local Government Code of 1991) as follows: SECTION 234. Exemptions from Real Property Tax. The following are exempted from payment of the real property tax: ... (b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-proft or religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable or educational purposes.[35] We note that under the 1935 Constitution, ... all lands, buildings, and improvements used exclusively for charitable purposes shall be exempt from taxation.[36] However, under the 1973 and the present Constitutions, for lands, buildings, and improvements of the charitable institution to be considered exempt, the same should not only be exclusively used for charitable purposes; it is required that such property be used

actually and directly for such purposes.[37] In light of the foregoing substantial changes in the Constitution, the petitioner cannot rely on our ruling in Herrera v. Quezon City Board of Assessment Appeals which was promulgated on September 30, 1961 before the 1973 and 1987 Constitutions took effect.[38] As this Court held in Province of Abra v. Hernando:[39] Under the 1935 Constitution: Cemeteries, churches, and parsonages or convents appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation. The present Constitution added charitable institutions, mosques, and non-proft cemeteries and required that for the exemption of lands, buildings, and improvements, they should not only be exclusively but also actually and directly used for religious or charitable purposes. The Constitution is worded differently. The change should not be ignored. It must be duly taken into consideration. Reliance on past decisions would have suffced were the words actually as well as directly not added. There must be proof therefore of the actual and direct use of the lands, buildings, and improvements for religious or charitable purposes to be exempt from taxation. Under the 1973 and 1987 Constitutions and Rep. Act No. 7160 in order to be entitled to the exemption, the petitioner is burdened to prove, by clear and unequivocal proof, that (a) it is a charitable institution; and (b) its real properties are ACTUALLY, DIRECTLY and EXCLUSIVELY used for charitable purposes. Exclusive is defned as possessed and enjoyed to the exclusion of others; debarred from participation or enjoyment; and exclusively is defned, in a manner to exclude; as enjoying a privilege exclusively.[40] If real property is used for one or more commercial purposes, it is not exclusively used for the exempted purposes but is subject to taxation.[41] The words dominant use or principal use cannot be substituted for the words used exclusively without doing violence to the Constitutions and the law.[42] Solely is synonymous with exclusively. [43] What is meant by actual, direct and exclusive use of the property for charitable purposes is the direct and immediate and actual application of the property itself to the purposes for which the charitable institution is organized. It is not the use of the income from the real property that is determinative of whether the property is used for tax-exempt purposes.[44] The petitioner failed to discharge its burden to prove that the entirety of its real property is actually, directly and exclusively used for charitable purposes. While portions of the hospital are used for the treatment of patients and the dispensation of medical services to them, whether paying or non-paying, other portions thereof are being leased to private individuals for their clinics and a canteen. Further, a portion of the land is being leased to a private individual for her business enterprise under the business name Elliptical Orchids and Garden Center. Indeed, the petitioners evidence shows that it collected P1,136,483.45 as rentals in 1991 and P1,679,999.28 for 1992 from the said lessees. Accordingly, we hold that the portions of the land leased to private entities as well as those parts of the hospital leased to private individuals are not exempt from such taxes.[45] On the other hand, the portions of the land occupied by the hospital and portions of the hospital used for its patients, whether paying or non-paying, are exempt from real property taxes. IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The respondent Quezon City Assessor is hereby DIRECTED to determine, after due hearing, the precise portions of the land and the area thereof which are leased to private persons, and to compute the real property taxes due thereon as provided for by law. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. Vitug, J., on offcial leave. Ynares-Santiago, and Austria-Martinez, JJ., on leave.

EN BANC [G.R. Nos. 132875-76. February 3, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO G. JALOSJOS, accused-appellant. RESOLUTION YNARES-SANTIAGO, J.: The accused-appellant, Romeo G. Jalosjos is a full-fedged member of Congress who is now confned at the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts[1] is pending appeal. The accused-appellant fled this motion asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the frst instance of a non-bailable offense. The issue raised is one of frst impression. Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in general? In answering the query, we are called upon to balance relevant and conficting factors in the judicial interpretation of legislative privilege in the context of penal law. The accused-appellants "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was fled on the grounds that 1. Accused-appellants reelection being an expression of popular will cannot be rendered inutile by any ruling, giving priority to any right or interest not even the police power of the State. 2. To deprive the electorate of their elected representative amounts to taxation without representation. 3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed mandate entrusted to him by the people. 4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard. 5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress. 6. The House treats accused-appellant as a bona fde member thereof and urges a co-equal branch of government to respect its mandate. 7. The concept of temporary detention does not necessarily curtail the duty of accusedappellant to discharge his mandate. 8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail. The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the First District of Zamboanga del Norte chose him as their representative in Congress. Having been reelected by his constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints arising from pending criminal cases.

True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to achieve the continuity of government and the perpetuation of its benefts. However, inspite of its importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our frst task is to ascertain the applicable law. We start with the incontestable proposition that all top offcials of Government-executive, legislative, and judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to high government offce, by itself, frees the offcial from the common restraints of general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience rather than exemption. The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that the privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations. The 1935 Constitution provided in its Article VI on the Legislative Department: Sec. 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going to and returning from the same; xxx. Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal. The 1973 Constitution broadened the privilege of immunity as follows: Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from the same. For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive interpretation of immunity and the intent to confne it within carefully defned parameters is illustrated by the concluding portion of the provision, to wit: xxx but the Batasang Pambansa shall surrender the member involved to the custody of the law within twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so. The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session. The accused-appellant argues that a member of Congress function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. However, the accused-appellant has not given any reason why he should be exempted from the operation of

Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confnement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations. Accused-appellants reliance on the ruling in Aguinaldo v. Santos[2], which states, inter alia, that The Court should never remove a public offcer for acts done prior to his present term of offce. To do otherwise would be to deprive the people of their right to elect their offcers. When a people have elected a man to offce, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people. will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case involves the administrative removal of a public offcer for acts done prior to his present term of offce. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not removal, confnement pending appeal is not removal. He remains a congressman unless expelled by Congress or, otherwise, disqualifed. One rationale behind confnement, whether pending appeal or after fnal conviction, is public self-defense. Society must protect itself. It also serves as an example and warning to others. A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States v. Gustilo,[3] it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his absconding.[4] The accused-appellant states that the plea of the electorate which voted him into offce cannot be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his regular place of confnement. It will be recalled that when a warrant for accused-appellants arrest was issued, he fed and evaded capture despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accusedappellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-defned Constitutional restrains, it would be a mockery of the aims of the States penal system. Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted several motions to temporarily leave his cell at the Makati City Jail, for offcial or medical reasons, to wit: a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue of whether to expelsuspend him from the House of Representatives; b) to undergo dental examination and treatment at the clinic of his dentist in Makati City; c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City; d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered plane and private vehicle. He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises, to wit:

a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one guard and allowed to use his own vehicle and driver in going to and from the project area and his place of confnement. b) to continue with his dental treatment at the clinic of his dentist in Makati City. c) to be confned at the Makati Medical Center in Makati City for his heart condition. There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders. What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meetings for fve (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accusedappellants status to that of a special class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard are the following observations of the Court in Martinez v. Morfe:[5] The above conclusion reached by this Court is bolstered and fortifed by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justifcation in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions effciently and well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffces to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would remain independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence. The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fde member of the House of Representatives, the latter urges a coequal branch of government to respect his mandate. He also claims that the concept of temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions when he is allowed to leave jail. We remain unpersuaded. No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is provided with a congressional offce situated at Room N-214, North Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department coordination, he is also provided with an offce at the Administration Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further admits that while under detention, he has fled several bills and resolutions. It also appears that he has been receiving his salaries and other monetary benefts. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been allowed by the prison authorities at the National Pentientiary to perform these acts.

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confnes of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in offce. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: "x x x nor shall any person be denied the equal protection of laws."[6] This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.[7] The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective offcial result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confned under law? The performance of legitimate and even essential duties by public offcers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accusedappellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affiction. An elective governor has to serve provincial constituents. A police offcer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classifcation from those others who are validly restrained by law. A strict scrutiny of classifcations is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals.[8] The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.[9] We, therefore, fnd that election to the position of Congressman is not a reasonable classifcation in criminal law enforcement. The functions and duties of the offce are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confnement are germane to the purposes of the law and apply to all those belonging to the same class.[10] Imprisonment is the restraint of a mans personal liberty; coercion exercised upon a person to prevent the free exercise of his power of locomotion.[11] More explicitly, "imprisonment" in its general sense, is the restraint of ones liberty. As a punishment, it is restraint by judgment of a court or lawful tribunal, and is personal to the accused.[12] The term refers to the restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free action according to his own pleasure and will.[13] Imprisonment is the detention of another against his will depriving him of his power of locomotion[14] and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits defned by wall or any exterior barrier."[15] It can be seen from the foregoing that incarceration, by its nature, changes an individuals status in society.[16] Prison offcials have the diffcult and often thankless job of preserving the security in a potentially explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.[17]

Premises considered, we are constrained to rule against the accused-appellants claim that re-election to public offce gives priority to any other right or interest, including the police power of the State. WHEREFORE, the instant motion is hereby DENIED. SO ORDERED. Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, and De Leon, Jr., JJ., concur. Gonzaga-Reyes, J., see separate concurring opinion. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, and Mendoza, JJ., concurs in the main and separate opinion.

[1] RTC Decision, pp. 54-55. [2] 212 SCRA 768, at 773 [1992]. [3] 19 Phil. 208, 212. [4] Cubillo v. City Warden, 97 SCRA 771 [1980]. [5] 44 SCRA 37 [1972]. [6] Art. III, Sec. 1. [7] Ichong v. Hernandez, 101 Phil. 1155. [8] Skinuer v. Oklahoma, 315 US 535. [9] See Fernando, Constitution of the Philippines, 2nd Edition, p. 548. [10] See Felwa v. Salas, 18 SCRA 606 [1966]; Ichong v. Hernandez, 101 Phil. 1155; Dumlao v. Commission on Elections, 95 SCRA 392 [1980]; Ceniza v. Commission on Elections, 96 SCRA 763 (1980); People v. Cayat, 68 Phil. 12. [11] Blacks Law Dictionary, Special Deluxe 5th Ed., p. 681. [12] 20 Words And Phrases, Permanent Ed., p. 466, citing US v. Safeway Stores [Tex.] C.C.C.A. Kan. 140 F 2d 834, 839 and US v. Mitchell, 163 F. 1014, 1016 at p. 470. [13] Ibid., p. 470, citing Pine v. Okzewski, 170 A. 825, 827, 112 N.J.L. 429. [14] Id., p. 472, citing US v. Benner, 24 Fed. Cas. 1084, 1087. [15] Id., citing Bird v. Jones, 4 N.Y. Leg. Obs. 158, 159. [16] Sheldon, Krantz, 1988 Supplement. The Law of Correction and Prisoners Rights, 3rd Ed., p. 121. [17] Ibid.

EN BANC [G.R. No. 141489. November 29, 2002]

SENATOR AQUILINO Q. PIMENTEL, JR., REPRESENTATIVES MELVYN D. EBALLE, LEONARDO Q. MONTEMAYOR, CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and PATRICIA M. SARENAS, petitioners, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, JUSTICES JOSE A.R. MELO, VICENTE V. MENDOZA and JOSE C. VITUG, and REPRESENTATIVES ASANI S. TAMMANG, RAUL M. GONZALES, DIDAGEN P. DILANGALEN, DANTON Q. BUESER,[1] NAPOLEON R. BERATIO, SIMEON E. GARCIA and SPEAKER MANUEL B. VILLAR, JR., respondents. [G.R. No. 141490 November 29, 2002]

SENATOR AQUILINO Q. PIMENTEL, JR. REPRESENTATIVES MELVYN D. EBALLE, LEONARDO Q. MONTEMAYOR, CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and PATRICIA M. SARENAS, petitioners, vs. COMMISSION ON APPOINTMENTS, its Chair, SENATE PRESIDENT BLAS F. OPLE, and Members, namely: SENATORS FRANKLIN M. DRILON, RENATO L. CAYETANO, LOREN LEGARDALEVISTE, ROBERT Z. BARBERS, ANNA DOMINIQUE M.L. COSETENG, GREGORIO HONASAN, RAMON B. MAGSAYSAY, JR., TERESA AQUINO-ORETA, RAUL S. ROCO, FRANCISCO S. TATAD, VICENTE C. SOTTO III and REPRESENTATIVES LUIS A. ASISTIO, EMILIO R. ESPINOSA, JR., WIGBERTO E. TAADA, MANUEL M. GARCIA, SIMEON A. DATUMANONG, ANTONIO M. DIAZ, FAUSTINO S. DY, JR., PACIFICO M. FAJARDO, ERNESTO F. HERRERA, NUR G. JAAFAR, CARLOS M. PADILLA, ROGELIO M. SARMIENTO and SPEAKER MANUEL B. VILLAR, JR., respondents.

DECISION CARPIO, J.: The Case

Before this Court are two original petitions for prohibition and mandamus with prayer for writ of preliminary injunction. Petitioners assail the composition of the House of Representatives Electoral Tribunal (HRET for brevity)[2] and the Commission on Appointments (CA for brevity).[3] Petitioners pray that respondents be ordered to alter, reorganize, reconstitute and reconfgure the composition of the HRET and the CA to include party-list representatives in accordance with Sections 17 and 18, Article VI of the 1987 Constitution and Republic Act No. 7941, otherwise known as the Party-List System Act. Petitioners further pray that the HRET and the CA be enjoined from exercising their functions until they have been reorganized. Antecedent Facts

Section 5, Article VI of the 1987 Constitution provides for a party-list system in the House of Representatives (House for brevity), as follows: Sec. 5. (1) The House of Representatives shall be composed of not more than two hundred and ffty members, unless otherwise fxed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a

party-list system of registered national, regional and sectoral parties or organizations. (2) 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 ratifcation of this Constitution, onehalf of the seats allocated to party-list representatives shall be flled, 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. On March 3, 1995, the Party-List System Act took effect. The Act sought to promote proportional representation in the election of representatives, to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack welldefned political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will beneft the nation as a whole, to become members of the House of Representatives.[4] On May 11, 1998, in accordance with the Party-List System Act, national elections were held which included, for the frst time, the election through popular vote of party-list groups and organizations whose nominees would become members of the House. Proclaimed winners were 14 party-list representatives from 13 organizations, including petitioners from party-list groups Association of Philippine Electric Cooperatives[5] (APEC), Alyansang Bayanihan ng mga Magsasaka, Manggagawang Bukid at Mangingisda (ABA), NATCO Network Party (COOP-NATCCO), Akbayan! Citizens Action Party (AKBAYAN), and Abanse! Pinay (ABANSE). Due to the votes it garnered, APEC was able to send 2 representatives to the House, while the 12 other party-list groups had one representative each. Also elected were district representatives belonging to various political parties. Subsequently, the House constituted its HRET and CA contingent[6] by electing its representatives to these two constitutional bodies. In practice, the procedure involves the nomination by the political parties of House members who are to occupy seats in the HRET and the CA.[7] From available records, it does not appear that after the May 11, 1998 elections the party-list groups in the House nominated any of their representatives to the HRET or the CA. As of the date of fling of the instant petitions, the House contingents to the HRET and the CA were composed solely of district representatives belonging to the different political parties. On January 18, 2000, Senator Aquilino Q. Pimentel, Jr. wrote two letters addressed to then Senate President Blas F. Ople,[8] as Chairman of the CA, and to Associate Justice of the Supreme Court Jose A. R. Melo (now retired),[9] as Chairman of the HRET. The letters requested Senate President Ople and Justice Melo to cause the restructuring of the CA and the HRET, respectively, to include party-list representatives to conform to Sections 17 and 18, Article VI of the 1987 Constitution. In its meeting of January 20, 2000, the HRET resolved to direct the Secretary of the Tribunal to refer Senator Pimentels letter to the Secretary-General of the House of Representatives.[10] On the same day, HRET Secretary Daisy B. Panga-Vega, in an Indorsement[11] of even date, referred the letter to House of Representatives Secretary General Roberto P. Nazareno. On February 2, 2000, petitioners fled with this Court their Petitions for Prohibition, Mandamus and Preliminary Injunction (with Prayer for Temporary Restraining Order) against the HRET, its Chairman and Members,[12] and against the CA, its Chairman and Members.[13] Petitioners contend that, under the Constitution and the Party-List System Act, party-list representatives should have 1.2 or at least 1 seat in the HRET,[14] and 2.4 seats in the CA.[15] Petitioners charge that respondents committed grave abuse of discretion in refusing to act positively on the letter of Senator Pimentel. In its Resolution of February 8, 2000,[16] the Court en banc directed the consolidation of G.R. No. 141490 with G.R. No. 141489. On February 11, 2000, petitioners fled in both cases a motion[17] to amend their petitions to implead then Speaker Manuel B. Villar, Jr. as an additional respondent, in his capacity as Speaker of the House and as one of the members of the CA. The Court granted both motions and admitted the amended petitions. Senator Pimentel fled the instant petitions on the strength of his oath to protect, defend and uphold the Constitution and in his capacity as taxpayer and as a member of the CA. He was joined by 5 party-list representatives from APEC, ABA, ABANSE, AKBAYAN and COOP-NATCCO as co-petitioners. Petitioners cite as basis Sections 17 and 18, Article VI of the 1987 Constitution, to wit: Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the

sole judge of all contests relating to the election, returns and qualifcations of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman. Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex offcio Chairman, twelve Senators and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The Chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members,[18] (Emphasis supplied) Petitioners also invoke the following provision of Section 11 of Republic Act No. 7941: Sec. 11. Number of Party-List Representatives. - The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list. xxx[19] According to the Solicitor Generals Consolidated Comment,[20] at the time petitioners fled the instant petitions the House had 220 members, 14 of whom were party-list representatives, constituting 6.3636% of the House. Of the remaining 206 district representatives affliated with different political parties, 151 belonged to LAMP (68.6354%), 36 belonged to LAKAS (16.3636%), 13 to the Liberal Party (5.9090%), 1 member (0.4545%) each to KBL, PDRLM, Aksyon Demokratiko, Reporma and PROMDI, and 1 representative was an independent. In their Reply to Consolidated Comment,[21] petitioners alleged that, following the Solicitor Generals computation, the LP and LAKAS were over-represented in the HRET and the CA. Petitioners particularly assail the presence of one LP representative each in the HRET and the CA, and maintain that the LP representatives should be ousted and replaced with nominees of the 14 party-list representatives. The Issues

Petitioners raise the following issues: 1. WHETHER THE PRESENT COMPOSITION OF THE HOUSE ELECTORAL TRIBUNAL VIOLATES THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN THE HRET. 2. WHETHER THE PRESENT MEMBERSHIP OF THE HOUSE IN THE COMMISSION ON APPOINTMENTS VIOLATES THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN THE CA. 3. WHETHER THE REFUSAL OF THE HRET AND THE CA TO RECONSTITUTE THEMSELVES TO INCLUDE PARTY-LIST REPRESENTATIVES CONSTITUTES GRAVE ABUSE OF DISCRETION. On the other hand, the Solicitor General argues that the instant petitions are procedurally defective and substantially lacking in merit for having been fled prematurely, thus: It is a generally accepted principle that the averments in the pleading determine the existence of a cause of action. In the instant petitions, petitioners failed to aver that they or any one of them was elected by a party or organization registered under the party-list system as a Member of the HRET or CA to represent said party or organization under the party-list system of the House of Representatives.[22] The Ruling of the Court

Petitioners urge the Court to rule on the issues raised in the petitions under review, citing the following pronouncement in Guingona Jr. v. Gonzales :[23] Where constitutional issues are properly raised in the context of the alleged facts, procedural questions acquire a relatively minor signifcance, and the transcendental importance to the public of the case demands that they be settled promptly and defnitely brushing aside xxx technicalities of procedure. Petitioners reliance on Guingona, Jr. v. Gonzales is misplaced. The procedural questions that petitioners want the Court to brush aside are not mere technicalities but substantive matters that are specifcally provided for in the constitutional provisions cited by petitioners. The Constitution expressly grants to the House of Representatives the prerogative, within constitutionally defned limits, to choose from among its district and party-list representatives those who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of the Constitution[24] explicitly confers on the Senate and on the House the authority to elect among their members those who would fll the 12 seats for Senators and 12 seats for House members in the Commission on Appointments. Under Section 17, Article VI of the Constitution,[25] each chamber of Congress exercises the power to choose, within constitutionally defned limits, who among their members would occupy the allotted 6 seats of each chambers respective electoral tribunal. These constitutional provisions are reiterated in Rules 3 and 4 (a) of the 1998 Rules of the House of Representatives Electoral Tribunal, to wit: Rule 3. Composition. - The Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the House of Representatives who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The Senior Justice in the Tribunal shall be its Chairman. Rule 4. Organization. - (a) Upon the designation of the Justices of the Supreme Court and the election of the Members of the House of Representatives who are to compose the House of Representatives Electoral Tribunal pursuant to Sections 17 and 19 of Article VI of the Constitution, the Tribunal shall meet for its organization and adoption of such resolutions as it may deem proper. (Emphasis supplied) Likewise, Section 1 of the Rules of the Commission on Appointments provides: Section 1. Composition of the Commission On Appointments. Within thirty (30) days after both Houses of Congress shall have organized themselves with the election of the Senate President and the Speaker of the House of Representatives, the Commission on Appointments shall be constituted. It shall be composed of twelve (12) Senators and twelve (12) members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented herein. (Emphasis supplied) Thus, even assuming that party-list representatives comprise a suffcient number and have agreed to designate common nominees to the HRET and the CA, their primary recourse clearly rests with the House of Representatives and not with this Court. Under Sections 17 and 18, Article VI of the Constitution, party-list representatives must frst show to the House that they possess the required numerical strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply with the directive of the Constitution on proportional representation of political parties in the HRET and the CA can the party-list representatives seek recourse to this Court under its power of judicial review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before petitioners may bring the instant case to the court. Consequently, petitioners direct recourse to this Court is premature. The discretion of the House to choose its members to the HRET and the CA is not absolute, being subject to the mandatory constitutional rule on proportional representation.[26] However, under the doctrine of separation of powers, the Court may not interfere with the exercise by the House of this constitutionally mandated duty, absent a clear violation of the Constitution or grave abuse of discretion amounting to lack or excess of jurisdiction.[27] Otherwise, the doctrine of separation of powers calls for each branch of government

to be left alone to discharge its duties as it sees ft.[28] Neither can the Court speculate on what action the House may take if party-list representatives are duly nominated for membership in the HRET and the CA. The instant petitions are bereft of any allegation that respondents prevented the party-list groups in the House from participating in the election of members of the HRET and the CA. Neither does it appear that after the May 11, 1998 elections, the House barred the party-list representatives from seeking membership in the HRET or the CA. Rather, it appears from the available facts that the party-list groups in the House at that time simply refrained from participating in the election process. The party-list representatives did not designate their nominees even up to the time they fled the instant petitions, with the predictable result that the House did not consider any party-list representative for election to the HRET or the CA. As the primary recourse of the partylist representatives lies with the House of Representatives, the Court cannot resolve the issues presented by petitioners at this time. Moreover, it is a well-settled rule that a constitutional question will not be heard and resolved by the courts unless the following requirements of judicial inquiry concur: (1) there must be an actual controversy; (2) the person or party raising the constitutional issue must have a personal and substantial interest in the resolution of the controversy; (3) the controversy must be raised at the earliest reasonable opportunity; and (4) the resolution of the constitutional issue must be indispensable to the fnal determination of the controversy.[29] The fve party-list representatives who are petitioners in the instant case have not alleged that they are entitled to, and have been unlawfully deprived of, seats in the HRET or the CA. Neither have they claimed that they have been nominated by the party-list groups in the House to the HRET or the CA. As such, they do not possess the personal and substantial interest required to confer them with locus standi. The party raising the constitutional issue must have 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 diffcult constitutional questions.[30] We likewise fnd no grave abuse in the action or lack of action by the HRET and the CA in response to the letters of Senator Pimentel. Under Sections 17 and 18 of Article VI of the 1987 Constitution and their internal rules, the HRET and the CA are bereft of any power to reconstitute themselves. Finally, the issues raised in the petitions have been rendered academic by subsequent events. On May 14, 2001, a new set of district and party-list representatives were elected to the House. The Court cannot now resolve the issue of proportional representation in the HRET and the CA based on the present composition of the House of Representatives as presented by petitioners and the Solicitor General. With the May 14, 2001 elections, it is certain that the composition of the House has changed. In the absence of a proper petition assailing the present composition of the HRET and the CA, the instant petitions must fail. Otherwise, for the Court to rule on the instant petitions at this time would be tantamount to rendering an advisory opinion, which is outside our jurisdiction.[31] WHEREFORE, the consolidated petitions for prohibition and mandamus are DISMISSED. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Corona, CarpioMorales, Callejo, Sr., and Azcuna, JJ., concur. Vitug and Mendoza, J., no part; a respondent in G.R. No. 141489. Austria-Martinez,J., on leave.