Republic of the Philippines
) This doctrine is predicated on the principle of the separation
SUPREME COURT
Manila
EN BANC
G.R. No. L-1123             March 5, 1947
ALEJO MABANAG, ET AL., petitioners,  Coleman vs. Miller, a relatively recent decision of the United States
vs. respondents.
JOSE LOPEZ VITO, ET AL.,
Alejo Mabanag, Jose O. Vera, Jesus G. Barrera, Felixberto Serrano, J.
Antonio Araneta, Antonio Barredo, and Jose W. Diokno for petitioners.
Secretary of Justice Ozaeta, Solicitor General Tañada, and First
Assistant Solicitor General Reyes for respondents.
TUASON, J.:
This is a petition for prohibition to prevent the enforcement of a
congressional resolution designated "Resolution of both houses
proposing an amendment to the Constitution of the Philippines to be
appended as an ordinance thereto." The members of the Commission on
Elections, the Treasurer of the Philippines, the Auditor General, and the
Director of the Bureau of Printing are made defendants, and the
petitioners are eight senators, seventeen representatives, and the
presidents of the Democratic Alliance, the Popular Front and the
Philippine Youth Party. The validity of the above-mentioned resolution is
attacked as contrary to the Constitution.
The case was heard on the pleadings and stipulation of facts. In our view
of the case it is unnecessary to go into the facts at length. We will
mention only the facts essential for the proper understanding of the
issues. For this purpose it suffices to say that three of the plaintiff
senators and eight of the plaintiff representatives had been proclaimed
by a majority vote of the Commission on Elections as having been
elected senators and representatives in the elections held on April 23,
1946. The three senators were suspended by the Senate shortly after the
opening of the first session of Congress following the elections, on
account of alleged irregularities in their election. The eight
representatives since their election had not been allowed to sit in the
lower House, except to take part in the election of the Speaker, for the
same reason, although they had not been formally suspended. A
resolution for their suspension had been introduced in the House of
Representatives, but that resolution had not been acted upon definitely
by the House when the present petition was filed.
As a consequence these three senators and eight representatives did not
take part in the passage of the questioned resolution, nor was their
membership reckoned within the computation of the necessary three-
fourths vote which is required in proposing an amendment to the
Constitution. If these members of Congress had been counted, the
affirmative votes in favor of the proposed amendment would have been
short of the necessary three-fourths vote in either branch of Congress.
At the threshold we are met with the question of the jurisdiction of this
Court. The respondents deny that this Court has jurisdiction, relying on
the conclusiveness on the courts of an enrolled bill or resolution. There is
some merit in the petitioners' contention that this is confusing jurisdiction,
which is a matter of substantive law, with conclusiveness of an
enactment or resolution, which is a matter of evidence and practice. This
objection, however, is purely academic. Whatever distinction there is in
the juridical sense between the two concepts, in practice and in their
operation they boil down to the same thing. Basically the two notions are
synonymous in that both are founded on the regard which the judiciary
accords a co-equal coordinate, and independent departments of the
Government. If a political question conclusively binds the judges out of
respect to the political departments, a duly certified law or resolution also
binds the judges under the "enrolled bill rule" born of that respect.
It is a doctrine too well established to need citation of authorities, that
political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred
upon the courts by express constitutional or statutory provision. (16
C.J.S., 431.
of powers, a principle also too well known to require elucidation or
citation of authorities. The difficulty lies in determining what matters fall
within the meaning of political question. The term is not susceptible of
exact definition, and precedents and authorities are not always in full
harmony as to the scope of the restrictions, on this ground, on the courts
to meddle with the actions of the political departments of the government.
But there is one case approaching this in its circumstances:
Supreme Court reported and annotated in 122 A.L.R., 695. The case, by
a majority decision delivered by Mr. Chief Justice Hughes, is authority for
the conclusion that the efficacy of ratification by state legislature of a
proposed amendment to the Federal Constitution is a political question
and hence not justiciable. The Court further held that the decision by
Congress, in its control of the Secretary of State, of the questions of
whether an amendment has been adopted within a reasonable time from
the date of submission to the state legislature, is not subject to review by
the court.
If ratification of an amendment is a political question, a proposal which
leads to ratification has to be a political question. The two steps
complement each other in a scheme intended to achieve a single
objective. It is to be noted that the amendatory process as provided in
section 1 of Article XV of the Philippine Constitution "consists of (only)
two distinct parts: proposal and ratification." There is no logic in attaching
political character to one and withholding that character from the other.
Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and
committed to its charge by the Constitution itself. The exercise of this
power is even independent of any intervention by the Chief Executive. If
on grounds of expediency scrupulous attention of the judiciary be needed
to safeguard public interest, there is less reason for judicial inquiry into
the validity of a proposal than into that of a ratification. As the Mississippi
Supreme Court has once said:
There is nothing in the nature of the submission which should
cause the free exercise of it to be obstructed, or that could
render it dangerous to the stability of the government; because
the measure derives all its vital force from the action of the
people at the ballot box, and there can never be danger in
submitting in an established form, to a free people, the
proposition whether they will change their fundamental law.
The means provided for the exercise of their sovereign right of
changing their constitution should receive such a construction
as not to trammel the exercise of the right. Difficulties and
embarrassments in its exercise are in derogation of the right of
free government, which is inherent in the people; and the best
security against tumult and revolution is the free and
unobstructed privilege to the people of the State to change
their constitution in the mode prescribed by the instrument.
(Green vs. Weller, 32 Miss., 650; note, 10 L.R.A., N.S., 150.)
Mr. Justice Black, in a concurring opinion joined in by Justices Roberts,
Frankfurter and Douglas, in Miller vs.Coleman, supra, finds no basis for
discriminating between proposal and ratification. From his forceful
opinion we quote the following paragraphs:
The Constitution grant Congress exclusive power to control
submission of constitutional amendments. Final determination
by Congress that ratification by three-fourths of the States has
taken place "is conclusive upon the courts." In the exercise of
that power, Congress, of course, is governed by the
Constitution. However, whether submission, intervening
procedure or Congressional determination of ratification
conforms to the commands of the Constitution, call for
decisions by a "political department" of questions of a type
which this Court has frequently designated "political." And
decision of a "political question" by the "political department" to
which the Constitution has committed it "conclusively binds the
judges, as well as all other officers, citizens and subjects of . . .
government." Proclamation under authority of Congress that an
amendment has been ratified will carry with it a solemn
assurance by the Congress that ratification has taken place as
the Constitution commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the Constitution,
leaving to the judiciary its traditional authority of interpretation.
 To the extent that the Court's opinion in the present case even
impliedly assumes a power to make judicial interpretation of
the exclusive constitutional authority of Congress over
submission and ratification of amendments, we are unable to
agree.
The State court below assumed jurisdiction to determine
whether the proper procedure is being followed between
submission and final adoption. However, it is apparent that
judicial review of or pronouncements upon a supposed
limitation of a "reasonable time" within which Congress may
accept ratification; as to whether duly authorized State officials
have proceeded properly in ratifying or voting for ratification; or
whether a State may reverse its action once taken upon a
proposed amendment; and kindred questions, are all
consistent only with an intimate control over the amending
process in the courts. And this must inevitably embarrass the
course of amendment by subjecting to judicial interference
matters that we believe were intrusted by the Constitution
solely to the political branch of government.
The Court here treats the amending process of the Constitution
in some respects as subject to judicial construction, in others
as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Gloss, that
the Constitution impliedly requires that a properly submitted
amendment must die unless ratified within a "reasonable time."
Nor does the Court now disapprove its prior assumption of
power to make such a pronouncement. And it is not made
clear that only Congress has constitutional power to determine
if there is any such implication in Article 5 of the Constitution.
On the other hand, the Court's opinion declares that Congress
has the exclusive power to decide the "political questions" of
whether as State whose legislature has once acted upon a
proposed amendment may subsequently reverse its position,
and whether, in the circumstances of such a case as this, an
amendment is dead because an "unreasonable" time has
elapsed. No such division between the political and judicial
branches of the government is made by Article 5 which grants
power over the amending of the Constitution to Congress
alone. Undivided control of that process has been given by the
Article exclusively and completely to Congress. The process
itself is "political" in its entirely, from submission until an
amendment becomes part of the Constitution, and is not
subject to judicial guidance, control or interference at any point.
Mr. Justice Frankfurter, in another concurring opinion to which the other
three justices subscribed, arrives at the same conclusion. Though his
thesis was the petitioner's lack of standing in court — a point which not
having been raised by the parties herein we will not decide — his
reasoning inevitably extends to a consideration of the nature of the
legislative proceeding the legality of which the petitioners in that case
assailed. From a different angle he sees the matter as political, saying:
The right of the Kansas senators to be here is rested on
recognition by Leser vs. Garnett, 258 U.S., 130; 66 Law. ed.,
505; 42 S. Ct., 217, of a voter's right to protect his franchise.
The historic source of this doctrine and the reasons for it were
explained in Nixon vs. Herndon, 273 U.S., 436, 540; 71 Law.
ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000
damages against the Judges of Elections for refusing to permit
the plaintiff to vote at a primary election in Texas. In disposing
of the objection that the plaintiff had no cause of action
because the subject matter of the suit was political, Mr. Justice
Homes thus spoke for the Court: "Of course the petition
concerns political action, but it alleges and seeks to recover for
private damage. That private damage may be caused by such
political action and may be recovered for in a suit at law hardly
has been doubted for over two hundred years, since
Ashby vs. White, 2 Ld. Raym., 938; 92 Eng. Reprint, 126; 1
Eng. Rul. Cas., 521; 3 Ld. Raym., 320; 92 Eng. Reprint, 710,
and has been recognized by this Court." "Private damage" is
the clue to the famous ruling in Ashby vs. White, supra, and
determines its scope as well as that of cases in this Court of
which it is the justification. The judgment of Lord Holt is
permeated with the conception that a voter's franchise is a
personal right, assessable in money damages, of which the
exact amount "is peculiarly appropriate for the determination of
a jury," see Wiley vs. Sinkler, 179 U.S., 58, 65; 45 Law. ed.,
84, 88; 21 S. Ct., 17, and for which there is no remedy outside
the law courts. "Although this matter relates to the parliament,"
said Lord Holt, "yet it is an injury precedaneous to the
parliament, as my Lord Hale said in the case of
Bernardiston vs. Some, 2 Lev., 114, 116; 83 Eng. Reprint, 175.
The parliament cannot judge of this injury, nor give damage to
the plaintiff for it: they cannot make him a recompense." (2 Ld.
Raym., 938, 958; 92 Eng. Reprint, 126; 1 Eng. Rul. Cas., 521.)
The reasoning of Ashby vs. White and the practice which has
followed it leave intra-parliamentary controversies to
parliaments and outside the scrutiny of law courts. The
procedures for voting in legislative assemblies — who are
members, how and when they should vote, what is the
requisite number of votes for different phases of legislative
activity, what votes were cast and how they were counted —
surely are matters that not merely concern political action but
are of the very essence of political action, if "political" has any
connotation at all. Marshall Field & Co. vs. Clark, 143 U.S.,
649, 670, et seq.; 36 Law. ed., 294, 302; 12 S. Ct., 495;
Leser vs. Garnett, 258 U.S., 130, 137; 66 Law. ed., 505, 511;
42 S. Ct., 217. In no sense are they matters of "private
damage." They pertain to legislators not as individuals but as
political representatives executing the legislative process. To
open the law courts to such controversies is to have courts sit
in judgment on the manifold disputes engendered by
procedures for voting in legislative assemblies. If the doctrine
of Ashby vs. White vindicating the private rights of a voting
citizen has not been doubted for over two hundred years, it is
equally significant that for over two hundred years
Ashby vs. White has not been sought to be put to purposes like
the present. In seeking redress here these Kansas senators
have wholly misconceived the functions of this Court. The writ
of certiorari to the Kansas Supreme Court should therefore be
dismissed.
We share the foregoing views. In our judgment they accord with sound
principles of political jurisprudence and represent liberal and advanced
thought on the working of constitutional and popular government as
conceived in the fundamental law. Taken as persuasive authorities, they
offer enlightening understanding of the spirit of the United States
institutions after which ours are patterned.
But these concurring opinions have more than persuasive value. As will
be presently shown, they are the opinions which should operate to
adjudicate the questions raised by the pleadings. To make the point
clear, it is necessary, at the risk of unduly lengthening this decision, to
make a statement and an analysis of the Coleman vs. Miller case.
Fortunately, the annotation on that case in the American Law
Reports, supra, comes to out aid and lightens our labor in this phase of
the controversy.
Coleman vs. Miller was an original proceeding in mandamus brought in
the Supreme Court of Kansas by twenty-one members of the Senate,
including twenty senators who had voted against a resolution ratifying the
Child Labor Amendment, and by three members of the House of
Representatives, to compel the Secretary of the Senate to erase in
indorsement on the resolution to the effect that it had been adopted by
the Senate and to indorse thereon the words "as not passed." They
sought to restrain the offices of the Senate and House of
Representatives from signing the resolution, and the Secretary of State
of Kansas from authenticating it and delivering it to the Governor.
The background of the petition appears to have been that the Child Labor
Amendment was proposed by Congress in June, 1924; that in January,
1925, the legislature of Kansad adopted a resolution rejecting it and a
copy of the resolution was sent to the Secretary of State of the United
States; that in January, 1927, a new resolution was introduced in the
Senate of Kansas ratifying the proposed amendment; that there were
forty senators, twenty of whom voted for and twenty against the
resolution; and that as a result of the tie, the Lieutenant Governor cast
his vote in favor of the resolution.
The power of the Lieutenant Governor to vote was challenged, and the
petition set forth prior rejection of the proposed amendment and alleged
that in the period from June 1924 to March 1927, the proposed
amendment had been rejected by both houses of the legislatures of
twenty-six states and had been ratified only in five states, and that by
reason of that rejection and the failure of ratification within a reasonable
time, the proposed amendment had lost its vitality.
The Supreme Court of Kansas entertained jurisdiction of all the issues
but dismissed the petition on the merits. When the case reached the
Supreme Court of the United States the questions were framed
substantially in the following manner:
First, whether the court had jurisdiction; that is, whether the petitioners
had standing to seek to have the judgment of the state court reversed;
second, whether the Lieutenant Governor had the right to vote in case of
a tie, as he did, it being the contention of the petitioners that "in the light
of the powers and duties of the Lieutenant Governor and his relation to
the Senate under the state Constitution, as construed by the Supreme
Court of the state, the Lieutenant Governor was not a part of the
'legislature' so that under Article 5 of the Federal Constitution, he could
be permitted to have a deciding vote on the ratification of the proposed
amendment, when the Senate was equally divided"; and third, the effect
of the previous rejection of the amendment and of the lapse of time after
its submission.
The first question was decided in the affirmative. The second question,
regarding the authority of the Lieutenant Governor to vote, the court
avoided, stating: "Whether this contention presents a justiciable
controversy, or a question which is political in its nature and hence not
justiciable, is a question upon which the Court is equally divided and
therefore the court expresses no opinion upon that point." On the third
question, the Court reached the conclusion before referred to, namely,
(1) that the efficacy of ratification by state legislature of a proposed
amendment to the Federal Constitution is a political question, within the
ultimate power of Congress in the exercise of its control and of the
promulgation of the adoption of amendment, and (2) that the decision by
Congress, in its control of the action of the Secretary of State, of the
questions whether an amendment to the Federal Constitution has been
adopted within a reasonable time, is not subject to review by the court.
The net result was that the judgment of the Supreme Court of Kansas
was affirmed but in the grounds stated in the United States Supreme
Court's decision. The nine justices were aligned in three groups. Justices
Roberts, Black, Frankfurter and Douglas opined that the petitioners had
no personality to bring the petition and that all the questions raised are
political and non-justiciable Justices Butler and McReynolds opined that
all the questions were justiciable; that the Court had jurisdiction of all
such questions, and that the petition should have been granted and the
decision of the Supreme Court of Kansas reversed on the ground that the
proposal to amend had died of old age. The Chief Justice, Mr. Justice
Stone and Mr. Justice Reed regarded some of the issues as political and
non-justiciable, passed by the question of the authority of the Lieutenant
Governor to case a deciding vote, on the ground that the Court was
equally divided, and took jurisdiction of the rest of the questions.
The sole common ground between Mr. Justice Butler and Mr. Justice
McReynolds, on the one hand and the Chief Justice, Mr. Justice Stone
and Mr. Justice Reed, on the other, was on the question of jurisdiction;
on the result to be reached, these two groups were divided. The
agreement between Justices Roberts, Black, Frankfurter and Douglas,
on the one hand, and the Chief Justice and Justices Stone and Reed, on
the other, was on the result and on that part of the decision which
declares certain questions political and non-justiciable.
As the annotator in American Law Reports observes, therefore going four
opinions "show interestingly divergent but confusing positions of the
Justices on the issues discussed. "It cites an article in 48 Yale Law
Journal, 1455, amusingly entitled "Sawing a Justice in Half," which, in the
light of the divergencies in the opinions rendered, aptly queries" whether
the proper procedure for the Supreme Court would not have been to
reverse the judgment below and direct dismissal of the suit for want of
jurisdiction." It says that these divergencies and line-ups of the justices
"leave power to dictate the result and the grounds upon which the
decision should be rested with the four justices who concurred in Mr.
Justice Black's opinion." Referring to the failure of the Court to decide the
question of the right of the Lieutenant Governor to vote, the article points
out that from the opinions rendered the "equally divided" court would
seem under any circumstances to bean equal division of an odd number
of justices, and asks "What really did happen? Did a justice refuse to vote
on this issue? And if he did, was it because he could not make up his
mind, or is it possible to saw a justice vertically in half during the
conference and have him walk away whole?" But speaking in a more
serious vein, the commentator says that decision of the issue could not
be avoided on grounds of irrelevance, since if the court had jurisdiction of
the case, decision of the issue in favor of the petitioners would have
required reversal of the judgment below regardless of the disposal of the
other issues.
From this analysis the conclusion is that the concurring opinions should
be considered as laying down the rule of the case.
The respondent's other chief reliance is on the contention that a duly
authenticated bill or resolution imports absolute verity and is binding on
the courts. This is the rule prevailing in England. In the United States, "In
point of numbers, the jurisdictions are divided almost
equally pro and con the general principle (of these, two or three have
changed from their original position), two or three adopted a special
variety of view (as in Illinois), three or four are not clear, and one or two
have not yet made their decisions." (IV Wigmore on Evidence, 3d Edition,
685, footnote.) It is important to bear in mind, in this connection, that the
United States Supreme Court is on the side of those which favor the rule.
(Harwood vs. Wentworth, 40 Law. ed., 1069; Lyon vs. Wood, 38 Law.
ed., 854; Field vs. Clark, 36 Law. ed., 294.)
If for no other reason than that it conforms to the expressed policy of our
law making body, we choose to follow the rule. Section 313 of the old
Code of Civil Procedure, as amended by Act No. 2210, provides: "Official
documents may be proved as follows: . . . (2) the proceedings of the
Philippine Commission, or of any legislative body that may be provided
for in the Philippine Islands, or of Congress, by the journals of those
bodies or of either house thereof, or by published statutes or resolutions,
or by copies certified by the clerk or secretary, or printed by their
order;Provided, That in the case of Acts of the Philippine Commission or
the Philippine Legislature, when there is an existence of a copy signed by
the presiding officers and secretaries of said bodies, it shall be
conclusive proof of the provisions of such Acts and of the due enactment
thereof."
But there is more than statutory sanction for conclusiveness.
This topic has been the subject of a great number of decisions and
commentaries written with evident vehemence. Arguments for and
against the rule have been extensive and exhaustive. It would be
presumptuous on our part to pretend to add more, even if we could, to
what has already been said. Which such vast mass of cases to guide our
judgment and discretion, our labor is reduced to an intelligent selection
and borrowing of materials and arguments under the criterion of
adaptability to a sound public policy.
The reasons adduced in support of enrollment as contrasted with those
which opposed it are, in our opinion, almost decisive. Some of these
reasons are summarized in 50 American Jurisprudence, section 150 as
follows:
SEC. 150. Reasons for Conclusiveness. — It has been
declared that the rule against going behind the enrolled bill is
required by the respect due to a coequal and independent
department of the government, and it would be an inquisition
into the conduct of the members of the legislature, a very
delicate power, the frequent exercise of which must lead to
endless confusion in the administration of the law. The rule is
also one of convenience, because courts could not rely on the
published session laws, but would be required to look beyond
these to the journals of the legislature and often to any printed
bills and amendments which might be found after the
adjournment of the legislature. Otherwise, after relying on the
prima facie evidence of the enrolled bills, authenticated as
exacted by the Constitution, for years, it might be ascertained
from the journals that an act theretofore enforced had never
become a law. In this respect, it has been declared that these
is quite enough uncertainty as to what the law is without saying
 that no one may be certain that an act of the legislature has
become such until the issue has been determined by some
court whose decision might not be regarded as conclusive in
an action between the parties.
From other decisions, selected and quoted in IV Wigmore on Evidence,
696, 697, we extract these passages:
I think the rule thus adopted accords with public policy. Indeed,
in my estimation, few things would be more mischievous than
the introduction of the opposite rule. . . . The rule contended for
is that the Court should look at the journals of the Legislature
to ascertain whether the copy of the act attested and filed with
the Secretary of State conforms in its contents with the
statements of such journals. This proposition means, if it has
any legal value whatever, that, in the event of a material
discrepancy between the journal and the enrolled copy, the
former is to be taken as the standard of veracity and the act is
to be rejected. This is the test which is to be applied not only to
the statutes now before the Court, but to all statutes; not only
to laws which have been recently passed, but to laws the most
ancient. To my mind, nothing can be more certain than that the
acceptance of this doctrine by the Court would unsettle the
entire statute law of the State. We have before us some
evidence of the little reliability of these legislative journals. . . .
Can any one deny that if the laws of the State are to be tested
by a comparison with these journals, so imperfect, so
unauthenticated, the stability of all written law will be shaken to
its very foundations? . . . We are to remember the danger,
under the prevalence of such a doctrine, to be apprehended
from the intentional corruption of evidences of this character. It
is scarcely too much to say that the legal existence of almost
every legislative act would be at the mercy of all persons
having access to these journals. . . . ([1866], Beasley, C.J., in
Pangborn vs. Young, 32 N.J.L., 29, 34.)
But it is argued that if the authenticated roll is conclusive upon
the Courts, then less than a quorum of each House may be the
aid of corrupt presiding officers imposed laws upon the State in
defiance of the inhibition of the Constitution. It must be
admitted that the consequence stated would be possible.
Public authority and political power must of necessity be
confided to officers, who being human may violate the trusts
reposed in them. This perhaps cannot be avoided absolutely.
But it applies also to all human agencies. It is not fit that the
Judiciary should claim for itself a purity beyond all others; nor
has it been able at all times with truth to say that its high places
have not been disgraced. The framers of our government have
not constituted it with faculties to supervise coordinate
departments and correct or prevent abuses of their authority. It
cannot authenticate a statute; that power does not belong to it;
nor can it keep a legislative journal. (1869, Frazer, J., in
Evans vs. Brownem 30 Ind., 514, 524.)
Professor Wigmore in his work on Evidence — considered a classic, and
described by one who himself is a noted jurist, author, and scholar, as "a
permanent contribution to American law" and having "put the matured
nineteenth-century law in form to be used in a new era of growth" —
unequivocally identifies himself with those who believe in the soundness
of the rule. The distinguished professor, in answer to the argument of
Constitutional necessity, i.e., the impossibility of securing in any other
way the enforcement of constitutional restrictions on legislative action,
says:
(1) In the first place, note that it is impossible of consistent
application. If, as it is urged, the Judiciary are bound to enforce
the constitutional requirements of three readings, a two-thirds
vote, and the like, and if therefore an act must be declared no
law which in fact was not read three times or voted upon by
two-thirds, this duty is a duty to determine according to the
actual facts of the readings and the votes. Now the journals
may not represent the actual facts. That duty cannot allow us
to stop with the journals, if it can be shown beyond doubt that
the facts were otherwise than therein represented. The duty to
uphold a law which in fact was constitutionally voted upon is
quite as strong as the duty to repudiate an act
unconstitutionally voted upon. The Court will be going as far
wrong in repudiating an act based on proper votes falsified in
the journal as it will be in upholding an act based on improper
votes falsified in the enrollment. This supposed duty, in short,
is to see that the constitutional facts did exist; and it cannot
stop short with the journals. Yet, singularly enough, it is
unanimously conceded that an examination into facts as
provable by the testimony of members present is not allowable.
If to support that it be said that such an inquiry would be too
uncertain and impracticable, then it is answered that this
concedes the supposed constitutional duty not to be
inexorable, after all; for if the duty to get at the facts is a real
and inevitable one, it must be a duty to get at them at any cost;
and if it is merely a duty that is limited by policy and practical
convenience, then the argument changes into the second one
above, namely, how far it is feasible to push the inquiry with
regard to policy and practical convenience; and from this point
of view there can be but one answer.
(2) In the second place, the fact that the scruple of
constitutional duty is treated thus inconsistently and pushed
only up to a certain point suggests that it perhaps is based on
some fallacious assumption whose defect is exposed only by
carrying it to its logical consequences. Such indeed seems to
be the case. It rests on the fallacious motion that every
constitutional provision is "per se" capable of being enforced
through the Judiciary and must be safeguarded by the
Judiciary because it can be in no other way. Yet there is
certainly a large field of constitutional provision which does not
come before the Judiciary for enforcement, and may remain
unenforced without any possibility or judicial remedy. It is not
necessary to invoke in illustration such provisions as a clause
requiring the Governor to appoint a certain officer, or the
Legislature to pass a law for a certain purpose; here the
Constitution may remain unexecuted by the failure of Governor
or Legislature to act, and yet the Judiciary cannot safeguard
and enforce the constitutional duty. A clearer illustration may
be had by imagining the Constitution to require the Executive
to appoint an officer or to call out the militia whenever to the
best of his belief a certain state of facts exists; suppose he
appoints or calls out when in truth he has no such belief; can
the Judiciary attempt to enforce the Constitution by inquiring
into his belief? Or suppose the Constitution to enjoin on the
Legislators to pass a law upon a certain subject whenever in
their belief certain conditions exist; can the Judiciary declare
the law void by inquiring and ascertaining that the Legislature,
or its majority, did not have such a belief? Or suppose the
Constitution commands the Judiciary to decide a case only
after consulting a soothsayer, and in a given case the Judiciary
do not consult one; what is to be done?
These instances illustrate a general situation in which the
judicial function of applying and enforcing the Constitution
ceases to operate. That situation exists where the Constitution
enjoins duties which affect the motives and judgment of a
particular independent department of government, —
Legislature, Executive, and Judiciary. Such duties are simply
beyond enforcement by any other department if the one
charged fails to perform them. The Constitution may provide
that no legislator shall take a bribe, but an act would not be
treated as void because the majority had been bribed. So far
as the Constitution attempts to lay injunctions in matters
leading up to and motivating the action of a department,
injunctions must be left to the conscience of that department to
obey or disobey. Now the act of the Legislature as a whole is
for this purpose of the same nature as the vote of a single
legislator. The Constitution may expressly enjoin each
legislator not to vote until he has carefully thought over the
matter of legislation; so, too, it may expressly enjoin the whole
Legislature not to act finally until it has three times heard the
proposition read aloud. It is for the Legislature alone, in the
latter case as well as in the former, to take notice of this
injunction; and it is no more the function of the Judiciary in the
one case than in the other to try to keep the Legislature to its
duty:
xxx     xxx     xxx
 The truth is that many have been carried away with the
righteous desire to check at any cost the misdoings of
Legislatures. They have 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 inefficient
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 reflect credit
upon the name of popular government. (4 Wigmore on
Evidence, 699-702.)
The petitioners contend that the enrolled bill rule has not found
acceptance in this jurisdiction, citing the case of United States vs. Pons
(34 Phil., 729). It is argued that this Court examined the journal in that
case to find out whether or not the contention of the appellant was right.
We think the petitioners are in error.
It will be seen upon examination of section 313 of the Code of Civil
Procedure, as amended by Act No. 2210, that, roughly, it provides two
methods of proving legislative proceedings: (1) by the journals, or by
published statutes or resolutions, or by copies certified by the clerk or
secretary or printed by their order; and (2) in case of acts of the
Legislature, by a copy signed by the presiding officers and secretaries
thereof, which shall be conclusive proof of the provisions of such Acts
and of the due enactment thereof.
The Court looked into the journals in United States vs. Pons because, in
all probability, those were the documents offered in evidence. It does not
appear that a duly authenticated copy of the Act was in existence or was
placed before the Court; and it has not been shown that if that had been
done, this Court would not have held the copyconclusive proof of the due
enactment of the law. It is to be remembered that the Court expressly
stated that it "passed over the question" of whether the enrolled bill was
conclusive as to its contents and the mode of its passage.
Even if both the journals and an authenticated copy of the Act had been
presented, the disposal of the issue by the Court on the basis of the
journals does not imply rejection of the enrollment theory, for, as already
stated, the due enactment of a law may be proved in either of the two
ways specified in section 313 of Act No. 190 as amended. This Court
found in the journals no signs of irregularity in the passage of the law and
did not bother itself with considering the effects of an authenticated copy
if one had been introduced. It did not do what the opponents of the rule of
conclusiveness advocate, namely, look into the journals behind the
enrolled copy in order to determine the correctness of the latter, and rule
such copy out if the two, the journals and the copy, be found in conflict
with each other. No discrepancy appears to have been noted between
the two documents and the court did not say or so much as give to
understand that if discrepancy existed it would give greater weight to the
journals, disregarding the explicit provision that duly certified copies
"shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof."
In view of the foregoing consideration, we deem it unnecessary to decide
the question of whether the senators and representatives who were
ignored in the computation of the necessary three-fourths vote were
members of Congress within the meaning of section 1 of Article XV of the
Philippine Constitution.
The petition is dismissed without costs.
Moran, C.J., Pablo, and Hontiveros, JJ., concur.
Separate Opinions
BENGZON, J., with whom concurs PADILLA, J., concurring:
Although I maintain that we have jurisdiction as petitioners contend, I
can't vote for them, because the enrolled copy of the resolution and the
legislative journals are conclusive upon us.
A. The overwhelming majority of the state courts are of the opinion that
the question whether an amendment to the existing constitution has been
duly proposed in the manner required by such constitution properly
belongs to the judiciary. That is the position taken by Alabama, Arkansas,
California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas,
Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Jersey, Ohio, Oregon,
Rhode Island, Washington and Wisconsin. (See 12 C. J., 880 and
16C.J.S., 437.) (See also 11 Am. Jur., 639.) Only North Dakota and
Oklahoma have adopted a different view. (16 C.J.S., 437, notes 41 and
43.)
"The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly
adopted according to the requirements of an existing
constitution is a judicial question." (McConaughy vs. Secretary
of State, 106 Minn., 392, 409; 119 N.W., 408.) (12 C.J., 880.)
"An examination of the decisions shows that the courts have
almost uniformly exercised the authority to determine the
validity of the proposal, submission, or ratification of
constitutional amendments. It has been judicially determined
whether a proposed amendment received the constitutional
majority of votes. (Knight vs.Shelton, 134 Fed., 423;
Rice vs. Palmer, 78 Ark., 432; 96 S. W. 396; Green vs. State
Canvassers, 5 Ida., 130; 47 P., 259; 95 Am. S.R., 169; In
re Denny, 156 Ind., 104; 59 N.E., 359; 51 L. R. A., 722;
Dayton vs. St. Paul, 22 Minn., 400; Tecumseh Nat.
Bank vs. Saunders, 51 Nebr., 801; 71 N.W., 779;
Bott vs. Wurts, 63 N.J.L., 289; 43 A., 744, 881; 45 L.R.A., 251;
State vs. Foraker, 46 Oh. St., 677; 23 N.E., 491; 6 L.R.A.,
422.)" (12 C.J., 880.)
As our constitutional system ("limitation" of powers) is more analogous to
state systems than to the Federal theory of "grant" of powers, it is proper
to assume that the members of our Constitutional convention, composed
mostly of lawyers, and even the members of the American Congress that
approved the Tydings-McDuffie enabling legislation, contemplated the
adoption of such constitutional practice in this portion of the world.
Hence, my conclusion that in Philippine polity, courts may and should
take cognizance of the subject of this controversy.
B. The petitioners' grievance is that, contrary to the provisions of the
Constitution (Article XV), the proposed amendment was not approved "by
a vote of three-fourths of all the members of the Senate and of the House
of Representatives." They complain that certain Senators and some
members of the House of Representatives were not allowed to
participate and were not considered in determining the required three
fourths vote.
The respondents, besides denying our power to revised the counting,
assert that the persons mentioned, for all practical purposed did not
belong to the Congress of the Philippines on the day the amendment was
debated and approved.
Central target of attack is Republic Act No. 73 "to submit to the Filipino
people, for approval or disapproval, the amendment to the Constitution of
the Philippines to be appended as an Ordinance thereto, proposed by the
Congress of the Philippines in a Resolution of both Houses, etc."
Petitioners would have a declaration of invalidity of that piece of
legislation. Its first section provides that "the amendment to the
Constitution of the Philippines to be appended as an Ordinance thereto,
proposed by the Congress of the Philippines in a Resolution of both
Houses, adopted on September eighteen, nineteen hundred and forty-
six, shall be submitted to the people, for approval or disapproval, at a
general election which shall be held on March eleven, nineteen hundred
and forty-seven, in accordance with the provisions of this Act."
By this provision, the Legislative Department with the concurrence of the
Executive, declares in the most solemn manner that the resolution
proposing the amendment was duly carried. Therefore, it would be
pertinent to inquire whether those petitioners who are members of the
Congress that approved Republic Act No. 73 are not precluded from
questioning its validity or veracity, unless they assert and prove that in
Congress they opposed its enactment. In default of a contrary showing, it
is not reasonable to suppose that as members of Congress they
endorsed-- or at least are bound by — the declarations of Republic Act
No. 73? And if a private party is estopped from challenging the
constitutional efficacy of a law whose enactment he has procured (see 16
C.J.S., 198 and 11 Am. Jur., 767) should not a member of Congress be
estopped from impugning a statute he helped (presumably) to pass?
Parenthetically it should be added that the remaining petitioners, as mere
citizens, would probably have no suable claim. (Cf. 16 C.J.S., 169.)
C. But perhaps these points should be left to future study and decision,
because the instant litigation may be solved by the application of other
well-established principles founded mainly on the traditional respect
which one department of the Government entertains for the actions of the
others.
On account of the separation of powers, which I firmly believe, I agree to
the applicability and binding effect of section 313 of Act No. 190, as
amended by Act No. 2210, which, in my opinion, has not been abrogated
by the Rules of Court. I likewise believe the soundness of the doctrine
expounded by the authoritative Wigmore on a question admittedly within
the domain of the law on evidence: conclusiveness of the enrolled bill of
resolution upon the judicial authorities.
D. Withal, should that principle of conclusiveness be denied, the
respondents could plausibly fall back on the time-honored rule that the
courts may not go behind the legislative journals to contradict their
veracity. (United States vs.Pons, 34 Phil., 729.)
According to the minutes of the joint session Exhibit 3, in the Senate
sixteenth (16) senators approved the resolution against five (5), with no
absences; whereas in the house sixty-eight (68) congressmen voted
"yes", eighteen(18) voted "no", one abstained from voting and one was
absent. Therefore, 16 being three-fourths of the total membership of
twenty-one of the Senate (16 plus 5), and 68 being more than three-
fourths of the total membership of eighty-eight (88) of the House of
Representatives (68 plus 18 plus 1 plus 1), it is crystal clear that the
measure was upheld by the number of votes prescribed by the
Constitution.
True, there are in the said exhibit statements by two Senators and one
congressman to the effect that the votes did not constitute the majority
required by the Constitution. However, in the fact of the incontestable
arithmetical computation above shown, those protests must be attributed
to their erroneous counting of votes; none of them having then asserted
that "there were absent Senators or Congressmen who had not been
taken into account. "Ford although we might have judicial notice of the
number of proclaimed members of Congress, still we are no better
qualified than the Legislature to determine the number of its actual
membership at any given moment, what with demises or demissions,
remotions or suspensions.
HILADO, J., concurring and dissenting:
I concur in the result of the majority opinion as well as in the grounds
supporting the same in so far as they are not inconsistent with the
applicable reasons supporting my concurring opinion in Vera vs.
Avelino (77 Phil., 192). But I dissent from that part of the majority opinion
(page 3, ante) wherein it is stated that if the suspended members of the
Senate and House of Representatives had been counted "the affirmative
votes in favor of the proposed amendment would have been short of the
necessary three-fourths of vote in either branch of Congress."
The basic theories underlying my aforesaid concurring opinion in Vera
vs. Avelino, supra, are, first, that the questions therein raised were
political in nature within the exclusive province of the legislature, and,
second, that the judiciary does not possess jurisdiction over such
questions. It is to me evidence that the questions involved in the present
proceeding are no less political than those involved in that former Senate
case. It is deemed unnecessary to dwell at more length upon the grounds
of my said concurring opinion.
The ground for my dissent from the above-quoted statement of the
majority opinion in the instant proceeding is that the suspension of the
said members of the Senate and the House of Representatives being a
political question, the judiciary, being without jurisdiction to interfere with
the determination thereof by the proper political department of the
government, has perforce to abide by said determination if it were to go
any further in the consideration of the case. In other words, any further
discussion of the case in this Court will have to start from the premise
that said members have been suspended by the respective Houses of
Congress and that we, being powerless to interfere with the matter of
said suspension, must consider ourselves bound by the determination of
said political branches of the government. As said by the Supreme Court
of the United States in Philipps vs. Payne (2 Otto. [U.S.], 130; 23 Law.
ed., 649), "in cases involving the action of the political departments of the
government, the judiciary is bound by such action."
(Williams vs. Insurance Co., 13 Pet., 420; Garcia vs. Lee, 12 Pet., 511;
Kennel vs. Chambers, 14 How., 38; Foster vs. Neilson, 2 Pet., 209;
Nabob of Carnatio vs. East Ind. Co., Ves., Jr., 60; Lucer vs. Barbon, 7
How., 1; R.I. vs. Mass., 12 Pet., 714.)
If, then, we are to proceed, as I think we should, upon the premise that
said members have been thus suspended, there will be to my mind,
absolutely no justification, ground nor reason for counting them in the
determination of whether or not the required three-fourths vote was
attained. Their case was entirely different from that of members who, not
having been suspended nor otherwise disqualified, had the right to vote
upon the resolution. In the case of the latter, they had, like all other
members similarly situated, three alternatives, namely, to vote in favor of
the resolution, to vote against it, or to abstain from voting. If they voted in
favor, of course, their votes had to be counted amount those supporting
the resolution. If they voted against, of course, their votes had to be
counted with those opposing. And if they abstained from voting, there
would be sound justification for counting them as not in favor of the
resolution, because by their very abstention they impliedly but
necessarily would signify that they did not favor the resolution, for it is
obvious that if they did, they would have voted in favor of it. On the other
hand, those suspended members who, by reason of the suspension,
whose validity or legality we are devoid of jurisdiction to inquire into,
cannot be similarly treated. In their case there would be no way of
determining which way their votes would have gone or whether or not
they would have abstained from voting. In this connection, in considering
the hypothesis of their voting in case they had not been suspended, I
must go upon the assumption that while those suspended members may
belong to the political party which, as a party, was opposed to the
resolution, still they would have voted independently and following their
individual convictions. In this connection, it might not be amiss to mention
that there were quite a number of minority members of the legislature
who voted for the resolution. Hence, we are not in a position to say that
said suspended members, if they had not been suspended, would have
voted against the resolution, nor in favor of it either, nor that they would
have abstained from voting. Why then should they bed counted with the
members who voted against the resolution or those who, having the right
to vote, abstained from doing so? Why should we count them as though
we knew that they would have voted against the resolution, or even that
they would have abstained from voting? Soundly construed, I submit that
the Constitution does not, and could not, include suspended members in
the determination of the required three-fourths vote.
I take it, that the drafters in providing in Article XV, section 1, of the
Constitution that "The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the House of
Representatives voting(emphasis supplied) separately . . .", advisedly
used the vital and all-important word "voting" therein. I take it, that they
meant to refer to the members voting, undoubtedly expecting that all
members not suspended or otherwise disqualified, would cast their votes
one way or the other. But I am here even making a concession in favor of
the opponents when I say that those who, with the right to vote, abstain
from voting, may be counted among those not in favor of the measure.
But what I cannot bring myself to conceive is that the quoted provision
should have intended to count suspended or disqualified members as
opposed to the measure, or not being in favor of it, without it being
possible to know which way they would have voted or that they would
have abstained from voting — that they would never have voted in favor
of the measure. If I should ask why we should not count such suspended
or disqualified members among those in favor of the measure, I am sure
those who opine differently would answer, because we do not know that
they would have voted in favor of it. By the same token, if they should
ask me why we should not count them among those against the
measure, I would answer that we do not know that they would have voted
against it or that they would have abstained from voting. All this inevitably
leads to the conclusion — the only one possible — that such suspended
or disqualified members should not and cannot be counted due to that
very impossibility of knowing which way they would have voted or
whether they would have abstained from voting. I stand for a sound and
rational construction of the constitutional precept.
PARAS, J.:
I fully concur in the foregoing opinion of Mr. Justice Hilado.
PERFECTO, J., dissenting:
To surrender or not to surrender, that is the question.
The last bastion of democracy is in danger.
Those who are manning it are summoned to give up without the least
resistance, and the banner of the Constitution is silently and meekly
hauled down from its pole to be offered as a booty to the haughty
standard bearers of a new brand of Farcism. In t he words of Cicero,
"recedere de statu suae dignitatis."
Cardinal moral bearings have been lost in the psychological chaos
suffered by those, throwing overboard all ideals as burdensome and
dangerous ballast, in desperate efforts to attain at all costs individual
survival, even in ignominy, could not stand the impact of initial defeats at
the hands of invading fearsome military hordes.
The present is liable to confusion. Our minds are subjected to
determinate and indeterminate ideological pressures. Very often man
walks in the darkness of a blind alley obeying the pullings and pushings
of hidden and unhidden forces, or the arcane predeterminations of the
genes of human chromosomes. A rudderless ship floating in the middle
of an ocean without any visible shoreline, is bound to be wrecked at the
advent of the first typhoon. From early youth we begin to hear and learn
about the true ideals. Since then we set them as the guiding stars in our
actions and decisions, but in the long travel of life, many times the clouds
dim or completely darken those stars and then we have only to rely on
our faith in their existence and on habit, becoming unerring if long
enough followed, of adjusting our conduct to their guidance in calm and
cloudless nights. We are sitting in judgment to pass upon the conflicts,
disputes and disagreements of our fellowmen. Let us not forget that the
day shall come that we will be judged on how are are judging. Posterity
shall always have the final say. When the time solvent has dissolved the
human snag, then shall be rendered the final verdict as to whether we
have faced our task fearlessly or whether our hearts have shrunk upon
the magnitude of our duties and have chosen the most comfortable path
of retreat. Then it will be conclusively known whether did keep burning
the tripod fire in the temples of old. Some of us will just return into
anonymity, covered by the cold mist of historical oblivion; others will have
their names as by words repeatedly pronounced with popular hate or
general contempt; and still others will be remembered with universal
gratefulness, love and veneration, the guard on accorded to all those
who remained faithful to the fundamental tenets of justice. Winnowing
time will sift the chaff from the grain.
This is one of the cases upon which future generations will decide if this
tribunal has the sturdy courage to keep its responsibility in proper high
level. It will need the passing of decades and perhaps centuries before a
conclusive verdict is rendered, whether we should merit the scorn of our
fellow citizens and our decision shall be cursed as the Dred Scot decision
of Chief Justice Taney, the one that plunged the United States into civil
war, or whether in the heart of each future Filipino citizen there will be a
shrine in which our memory will be remembered with gratefulness,
because we have shown the far-reaching judicial statesmanship of Chief
Justice Marshall, the legal genius who fixed and held the rock bottom
foundations which made of the American Constitution the veritable
supreme law of the land and established the role of the tribunals as the
ultimate keepers of the Constitution. But for sure it will be rendered, and
it will be impartial and unbiased, exacting and pitiless, with unappealable
finality, and for the one condemned Dante wrote this lapidary line:
"lasciate ogni speranza."
Unless the vision of our mental eyes should be shut up by the opaque
cornea of stubborn refusal to see reality or should be impaired by the
polaroid visors of prejudice, there is no question that at the time when the
resolution in question, proposing an amendment to the Constitution, was
adopted, the members of the Senate were 24 and the members of the
House of Representatives were 96, and that the 16 members of the
Senate who voted in favor of the resolution, by undisputable
mathematical computation, do not constituted three-fourths of the 24
members thereof, and the 68 members of the House of Representatives
who voted for the resolution, by equally simple arithmetical operation, do
not constitute three-fourths of the 96 members of the said chamber. The
official certifications made by the presiding officers of the two houses of
Congress to the effect that three-fourths of all the members of the Senate
and three-fourths of all the members of the House of Representatives
voted for the resolution, being untrue, cannot change the facts. Nothing
in existence can. The certification, being a clear falsification of public
document punished by article 171 of the Revised Penal Code
with prision mayor and a fine not to exceed P5,000, cannot give reality to
a fiction based in a narration of facts that is in conflict with the absolute
metaphysical reality of the events.
FACTS OF THE CASE
Petitioners are citizens of the Philippines, taxpayers and electors, and
besides some of them are members of the Senate, others are members
of the House of Representatives, and still others are presidents of
political parties, duly registered, with considerable following in all parts of
the Philippines.
The first three respondents are chairman and members, respectively, of
the Commission on Elections and the remaining three are respectively
the Treasurer of the Philippines, the Auditor General and the Director of
the Bureau of Printing.
Petitioners alleged that the Senate is actually composed of 24 Senators,
8 elected in 1941 and 16 in April 23, 1946, and that the House of
Representatives is composed of 98 members, elected on April 23, 1946,
minus 2d who resigned to assume other positions in the Government.
On September 18, 1946, there was presented for adoption by the
Congress of the Philippines a resolution proposing an amendment to the
Constitution of the Philippines to be appended as an ordinance thereto,
which reads as follows:
Resolved by the Senate and House of Representatives, of the
Philippines in joint session assembled, by a vote of not less
than three-fourths of all the Members of each House voting
separately. To propose, as they do hereby propose, the
following amendment to the Constitution of the Philippines to
be appended as an Ordinance thereto:
ORDINANCE APPENDED TO THE CONSTITUTION
"Notwithstanding the provisions of section one, Article Thirteen,
and section eight, Article Fourteen, of the foregoing
Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the
President of the United States on the fourth of July, nineteen
hundred and forty-six, pursuant to the provisions of
Commonwealth Act Numbered seven hundred and thirty-three,
 but in no case to extend beyond the third of July, nineteen
hundred and seventy-four, the disposition, exploitation,
development, and utilization, of all agricultural, timber, and
mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces and sources of
potential energy, and other natural resources of the
Philippines, and the operation of public utilities, shall, if open to
any person, be open to citizens of the United States and to all
forms of business enterprise owned or controlled, directly or
indirectly, by citizens of the United States in the same manner
as to, and under the same conditions imposed upon, citizens of
the Philippines or corporations or associations owned or
controlled by citizens of the Philippines."
This amendment shall be valid as a part of the Constitution
when approved by a majority of the votes cast in an election at
which it is submitted to the people for the ratification pursuant
to Article XV of the Constitution.
Sixteen Senators voted in favor of the resolution and 5 against it, and 68
Representatives voted in favor and 18 against.
Thereafter, Congress passed Republic Act No. 73 calling a plebiscite to
be held on March 11, 1947, for the purpose of submitting to the people
the proposed amendment embodied in the resolution, and appropriating
P1,000,000 for said purpose.
Petitioners assail the validity of Republic Act No. 73 as unconstitutional
because Congress may not, by said act, submit to the people for
approval or disapproval the proposed amendment to the Constitution
embodied in resolution Exhibit B inasmuch as, to comply with the
express provisions of Article XV of the Constitution, requiring the
affirmative votes of three-fourths of all the members of the Senate and of
the House of Representatives voting separately, three-fourths of the 24
members of the Senate is constituted by at least 18 Senators, 2 more
than those who actually voted for the resolution in question, and three-
fourths of the 98 members of the House of Representatives should at
least be 72 Representatives, or 4 more than those who actually voted for
the resolution.
Respondents deny that the Senate is composed of 24 Senators, by
excluding from them petitioners Jose O. Vera, Ramon Diokno and Jose
E. Romero and allege that the House of Representatives is not
composed of 98 members but of only 90. They admit that at the joint
session of Congress to consider the resolution Exhibit B, in favor of the
resolution 16 votes were cast in the Senate and in the House of
Representatives 68 and 5 in the Senate and 18 in the House of
Representatives had voted against. They admit the approval of Republic
Act No. 73 and that necessary steps to hold the plebiscite therein
provided are being taken, but deny that said act is unconstitutional, and
byway of defense, allege that the resolution Exhibit B was adopted by
three-fourths of all the qualified members of the Senate and of the House
of Representatives voting separately and, consequently, Republic Act
No. 73, ordering its submission to the people for approval or disapproval,
fixing a date for a general election, and appropriating public funds for
said purpose, is valid and constitutional.
At the hearing of this case both parties submitted the following
stipulation:
The parties through their undersigned counsel hereby stipulate the
following facts:
1. That Messrs. Jose O. Vera, Ramon Diokno and Jose E.
Romero were, by the majority vote of the Commission on
Elections, proclaimed elected senators in the election of April
23, 1946;
2. That when the Senate convened on May 25, 1946, the said
senators-elect took part in the election of the President of that
body; but that before the senators-elect were sworn in by the
President of the Senate, a resolution was presented, and
subsequently approved, to defer the administration of oath and
the seating of Messrs. Jose O. Vera, Ramon Diokno, and Jose
E. Romero, pending the hearing and decision of the protest
lodged against their election;
3. That on the 25th of May, 1946, the said senators individually
took their alleged oath of office before notaries public, and not
on the floor, and filed said oaths with the Secretary of the
Senate during the noon recess of the said date;
4. That Messrs. Vera and Romero filed with the Auditor of the
Senate other oaths of office accomplished by them outside of
the floor before a notary public and the Secretary of the
Senate, on September 5 and August 31, 1946, respectively;
and that their corresponding salaries from April 23, 1946, were
paid on August 31, 1946;
5. That Mr. Diokno, having left for the United States, his son
Jose W. Diokno filed a copy of Mr. Diokno's alleged oath of
office dated May 25, 1946, with the Auditor of the Senate on
October 15,1946, and on said date his salary was paid
corresponding to the period from April 23 to October 15, 1946;
6. That all three have subsequently received their salaries
every fifteen days;
7. That since the approval of the resolution deferring their
seating and oaths up to the present time, the said Messrs.
Vera, Diokno, and Romero have not been allowed to sit and
take part in the deliberations of the Senate and to vote therein,
not do their names appear in the roll of the Senate;
8. That before May 25, 1946, the corresponding provincial
boards of canvassers certified as having been elected in the
election held on April 23, 1946, ninety-eight representatives,
among them Messrs. Alejo Santos and Jesus B. Lava for
Bulacan, Jose Cando and Constancio P. Padilla for Nueva
Ecija, Amado M. Yuson and Luis Taruc for Pampanga,
Alejandro Simpauco for Tarlac, and Vicente F. Gustilo for
Negros Occidental;
9. That the aforesaid eight members-elect of the House of
Representatives took part in the election of the Speaker of the
House of Representatives held on May 25, 1946;
10. That before the members-elect of the House of
Representatives were sworn in by the Speaker, Mr. Topacio
Nueno, representative for Manila, submitted a resolution to
defer the taking of oath and seating of Luis Taruc and Amado
Yuson for Pampanga, Constancio P. Padilla and Jose Cando
for Nueva Ecija, Alejandro Simpauco for Tarlac, Alejo Santos
and Jesus Lava for Bulacan, and Vicente F. Gustilo for Negros
Occidental "pending the hearing and decision on the protests
lodged against their election," copy of the resolution being
attached to and made part of this stipulation as Exhibit 1
thereof;
11. That the resolution Exhibit 1 was, upon motion of
Representative Escareal and approved by the House, referred
for study to a committee of seven, which up to the present has
not reported, as shown by the Congressional Record for the
House of Representatives;
12. That the eight representatives-elect included in the
resolution were not shown in on the floor and have not been so
sworn in or allowed to sit up to the present time, nor have they
participated in any of the proceedings of the House of
Representatives except during the debate of the Escareal
motion referred to in paragraph 11 hereof, nor cast any vote
therein since May 25, 1946, and their names do not appear in
the roll of the members of the House except as shown by the
Congressional Record of the House of Representatives, nor in
the roll inserted in the official program for the inauguration of
the Republic of the Philippines hereto attached as Exhibit 2
hereof;
 13. That the eight representatives-elect above mentioned took
their alleged oaths of office on the date set opposite their
names, as follows:
Jose Cando May 25, 1946
Vicente Gustilo May 25, 1946
Constancio Padilla May 22, 1946
Alejo Santos May 23, 1946
Luis M. Taruc May 25, 1946
Amado M. Yuson May 25, 1946
Jesus B. Lava May 25, 1946
Alejandro Simpauco May 25, 1946
all of which oaths were taken before notaries public, with the
exception of the first four who took their oaths before Mr.
Narciso Pimentel, Secretary of the House;
14. That said oaths were filed with the Auditor through the
office of the Secretary of the House of Representatives;
15. That the persons mentioned in paragraph 13 were paid
salaries for the term beginning April 23, 1946, up to the
present, with the exception of Messrs. Luis Taruc and Jesus
Lava, to whom payment was suspended since August 16;
16. That Messrs. Alejo Santos and Vicente F. Gustilo took their
oaths before the Speaker of the House of Representatives and
were allowed to sit on September 30, 1946, the last day of the
Special Sessions;
17. That in addition to the eight persons above mentioned, two
members of the House, Representatives Jose C. Zulueta and
Narciso Ramos, had resigned before the resolution proposing
an amendment to the Constitution was discussed and passed
on September 18,1946;
18. That the voting on the resolution proposing an amendment
to the Constitution was made by the Secretary calling the roll of
each house and the votes cast were as shown in the attached
certificate of the Secretary of the House of Representatives
hereto attached, marked Exhibit 3 and made a part hereof; and
19. That the Congressional Records for the Senate and House
of Representatives and the alleged oaths of office are made a
part of this Stipulation by reference thereto, respondents
reserving the right to question their materiality and
admissibility.
Manila, Philippines, November 25, 1946.
For the petitioners:
JOSE E. ROMERO
ANTONIO BARREDO
PETITIONER'S PERSONALITY
Whether petitioners have or have not the personality to file the petition in
this case is the first question we have to consider.
No party raised the question, but it having arisen in the course of the
Court's deliberation, we should not evade deciding it and giving what in
law and justice should be the answer.
To our mind there is no doubt that petitioners have the personality to
institute the present recourse of prohibition. If petitioners should lack that
personality, such legal defect would not certainly have failed to be
noticed by respondents themselves.
Respondents' failure to raise the question indicates their conviction that
petitioners have the necessary legal personality to file the petition, and
we do not see any reason why such personality should be put in doubt.
Petitioners are divided into three groups: the first is composed of
senators; the second, of representatives; and the third, of presidents of
four political parties.
All of the individuals composing the first two groups, with the exception of
Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, are
members of either of the two houses of Congress and took part in the
consideration of Resolution Exhibit B and of Republic Act No. 73, while
the above three excepted senators were the ones who were excluded in
the consideration of said resolution and act and were not counted for
purposes of determining the three-fourths constitutional rule in the
adoption of the resolution.
In paragraph eight of the petition it is alleged that respondents have
taken all the necessary steps for the holding of the general election on
March 11, 1947, and that the carrying out of said acts "constitute an
attempt to enforce the resolution and act aforementioned in open
violation of the Constitution," is without or in excess of respondents'
jurisdiction and powers, "violative of the rights of the petitioners who are
members of the Congress, and will cause the illegal expenditure and
disbursement of public funds and end in an irreparable injury to the
taxpayers and the citizens of the Philippines, among whom are the
petitioners and those represented by them in their capacities mentioned
above."
There should not be any question that the petitioners who are either
senators or members of the House of Representatives have direct
interest in the legal issues involved in this case as members of the
Congress which adopted the resolution, in open violation of the
Constitution, and passed the act intended to make effective such
unconstitutional resolution. Being members of Congress, they are even
duty bound to see that the latter act within the bounds of the Constitution
which, as representatives of the people, they should uphold, unless they
are to commit a flagrant betrayal of public trust. They are representatives
of the sovereign people and it is their sacred duty to see to it that the
fundamental law embodying the will of the sovereign people is not
trampled upon.
The four political parties represented by the third group of petitioners,
represent large groups of our population, perhaps nearly one-half of the
latter, and the numerous persons they represent are directly interested
and will personally be affected by the question whether the Constitution
should be lightly taken and can easily be violated without any relief and
whether it can be amended by a process openly repugnant to the letter of
the Constitution itself.
As a matter of fact, the vital questions raised in this case affect directly
each and every one of the citizens and inhabitants of this country.
Whether our Constitution is, as it is supposed to be, a paramount law or
just a mere scrap of paper, only good to be thrown into a waste basket, is
a matter of far-reaching importance to the security, property, personal
freedom, life, honor, and interests of the citizens. That vital question will
necessarily affect the way of life of the whole people and of its most
unimportant unit. Each and every one of the individuals inhabiting this
land of ours shall have to make plans for the future depending on how
the question is finally decided. No one can remain indifferent; otherwise,
it will at his peril.
Our conclusion is that petitioners have full legal personality to institute
the present action; and much more, those who are members of Congress
have the legal duty to institute it, lest they should betray the trust reposed
in them by the electorate.
24 SENATORS
The first question raised by respondents' answer refers to the actual
number of the members of the Senate. According to petitioners there are
24 of them while according to respondents there are only 21, excluding From the stipulation of facts, there should not be any question that at the
Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because, last national election, 98 representatives were elected and at the time the
according to them, "they are not duly qualified and sworn in members of resolution Exhibit B was adopted on September 18, 1946, 96 of them
the Senate." were actual members of the House, as two (Representatives Zulueta and
Ramos) has resigned.
This allegation appears to be belied by the first seven paragraphs of the
stipulation of facts submitted by both parties. Applying the three-fourth rule, if there were 24 senators at the time the
resolution was adopted; three-fourths of them should at least be 18 and
not the 16 who only voted in favor of the resolution, and if there were 96
No amount of sophism, of mental gymnastics or logo-daedaly may
representatives, three-fourths of them should certainly be more than the
change the meanings and effects of the words placed by respondents
68 who voted for the resolution. The necessary consequence is that,
themselves in said seven paragraphs. No amount of argument may
since not three-fourths of the senators and representatives voting
delude anyone into believing that Senators Vera, Diokno, and Romero
separately have voted in favor of the resolution as required by Article XV
are not senators notwithstanding their having been proclaimed as elected
of the Constitution, there can be no question that the resolution has not
senators, their having taken part in the election of the President of the
been validly adopted.
Senate, their having taken their oaths of office, and their receiving
salaries as senators.
We cannot but regret that our brethren, those who have signed or are in
agreement with the majority opinion, have skipped the questions as to
Such a paradoxical proposition could have been driven into acceptance
the actual membership of the Senate and House of Representatives,
in the undeveloped brains of the pithecanthropus or gigantopithecus of
notwithstanding the fact that they are among the first important ones
five hundred millennia ago, but it would be unpardonably insulting o the
squarely raised by the pleadings of both parties. If they had taken them
human mind of the twentieth century.
into consideration, it would seem clear that their sense of fairness will
bring them to the same conclusion we now arrived at, at least, with
Our conclusion is that Senators Vera, Diokno, and Romero should be respect to the actual membership of the House of Representatives.
counted as members of the Senate, without taking into consideration
whatever legal effects the Pendatun resolution may have produced, a
Upon our conclusions as to the membership of the Senate and House of
question upon which we have already elaborated in our opinion in Vera
Representatives, it appears evident that the remedy sought for in the
vs. Avelino (77 Phil., 192). Suspended or not suspended, they are
petition should be granted.
senators anyway, and there is no way of ignoring a fact so clear and
simple as the presence of the sun at day time. Therefore, counting said
three Senators, there are 24 Senators in all in the present Senate. JURISDICTION OF THE SUPREME COURT

96 REPRESENTATIVES Without judging respondents' own estimate as to the strength of their

own position concerning the questions of the actual membership of the
Senate and House of Representatives, it seems that during the oral and
The next question raised by respondents is their denial of petitioners'
in the written arguments they have retreated to the theory of
allegations to the effect that the present House of Representatives is
conclusiveness of the certification of authenticity made by the presiding
composed of 98 members and their own allegation to the effect that at
officers and secretaries of both House of Congress as their last redoubt.
present "only 90 members have qualified, have been fully sworn in, and
have taken their seats as such."
The resolution in question begins as follows: "Resolved by the Senate
and House of Representatives of the Philippines in joint session
Again respondents' allegations are belied by paragraphs eight to
assembled, by a vote of not less than three-fourths of all the members of
seventeen of the stipulation of facts.
each House voting separately, . . .."

The disagreement between the parties is as to whether or not

Just because the adoption of the resolution, with the above statement,
Representatives Cando, Gustilo, Padilla, Santos, Taruc, Yuson, Lava
appears to be certified over the signatures of the President of the Senate
and Simpauco, mentioned in paragraph 13 of the stipulation of facts, are
and the House of Representatives and the Secretaries of both Houses,
members of the House of Representatives.
respondents want us to accept blindly as a fact what is not. They want us
to accept unconditionally as a dogma, as absolute as a creed of faith,
The facts stipulated by the parties proved conclusively that said eight what, as we have shown, appears to be a brazen official falsehood.
persons are actual members of the House of Representatives. We may
even add that the conclusiveness about said eight representatives is
Our reason revolts against such an unethical proposition.
even greater than in the case of Senators Vera, Diokno, and Romero,
because no resolution of suspension has ever been adopted by the
House of Representatives against said eight members, who are being An intimation or suggestion that we, in the sacred temple of justice,
deprived of the exercise of some of their official functions and privileges throwing overboard all scruples, in the administration of justice, could
by the unipersonal, groundless, dictatorial act of the Speaker. accept as true what we know is not and then perform our official
functions upon that voluntary self-delusion, is too shocking and absurb to
be entertained even for a moment. Anyone who keeps the minimum
That illegal deprivation, whose counterpart can only be found in countries
sense of justice will not fail to feel aghast at the perversion or miscarriage
where the insolence of totalitarian rulers have replaced all constitutional
of justice which necessarily will result from the suggestion.
guarantees and all concepts of decent government, raises again a
constitutional question: whether it is permissible for the Speaker of the
House of Representatives to exercise the arbitrary power of depriving But the theory is advanced as a basis to attack the jurisdiction of this
representatives duly elected by the people of their constitutional Court to inquire behind the false certification made by the presiding
functions, privileges, and prerogatives. To allow the existence of such an officers and the secretaries of the two Houses of Congress.
arbitrary power and to permit its exercise unchecked is to make of
democracy a mockery.
Respondents rely on the theory of, in the words of the majority opinion,
"the conclusiveness on the courts of an enrolled bill or resolution."
The exercise of such an arbitrary power constitutes a want on onslaught
against the sovereignty itself of the people, an onslaught which may
To avoid repeating the arguments advanced by the parties, we have
cause the people sooner or later to take justice in their own hands. No
made part of this opinion, as Appendices A, B, and C,1 the memoranda
system of representative government may subsist if those elected by the
presented by both petitioners and respondents, where their attorneys
people may so easily be silenced or obliterated from the exercise of their
appear to have amply and ably discussed the question. The perusal of
constitutional functions.
the memoranda will show petitioners' contentions to be standing on
stronger ground and, therefore, we generally agree with their arguments.
In what follows we will try to analyze the positions taken in the majority
opinion.
POLITICAL QUESTIONS
The majority enunciates the proposition that "political questions are not
within the province of the judiciary," except "by express constitutional or
statutory provision" to the contrary. Then argues that "a duly certified law
or resolution also binds the judges under the 'enrolled bill rule' out of
respect to the political departments."
The doctrine is predicated "on the principle of the separation of powers."
This question of separation of powers is the subject of discussion in the
case of Vera vs. Avelino, supra. We deem unnecessary to repeat what
we have already said in our opinion in said case, where we have
elaborated on the question.
Although the majority maintains that what they call the doctrine that
political questions are not within the province of the judiciary is "too well-
established to need citation of authorities," they recognize the difficulty
"in determining what matters fall under the meaning of political
questions."
This alleged doctrine should not be accepted at its face value. We do not
accept it even as a good doctrine. It is a general proposition made
without a full comprehension of its scope and consequences. No judicial
discernment lies behind it.
The confession that the "difficulty lies in determining what matters fall
within the meaning of political question" shows conclusively that the so-
called doctrine has recklessly been advanced.
This allegedly "well-established" doctrine is no doctrine at all in view of
the confessed difficulty in determining what matters fall within the
designation of political question. The majority itself admits that the term
"is not susceptible of exact definition, and precedents and authorities are
not always in full harmony as to the scope of the restrictions, on this
ground, on the courts to meddle with the acts of the political department
of the government."
Doctrine is that "what is taught; what is held; put forth as true, and
supported by a teacher, a school, or a sect; a principle or position, or the
body of principles, in any branch of knowledge; tenet; dogma; principle of
faith. "It is a synonym of principle, position, opinion, article, maxim, rule,
and axiom. in its general sense, doctrine applies to any speculative truth
or working principle, especially as taught to others or recommended to
their acceptance. Therefore, to be true, it should be expressed on simple
and self-evident terms. A doctrine in which one of the elemental or
nuclear terms is the subject of an endless debate is a misnomer and
paradox.
A doctrine is advanced and accepted as an established truth, as a
starting point for developing new propositions, as a guiding principle in
the solution of many problems. It is a groundwork for the building of an
intellectual system. It is the basis of a more or less complex legal
structure. If not the cornerstone, it should at least be one of the main
columns of an architectonic construction. If that groundwork, cornerstone
or column is supported by a thing whose existence still remains in
dispute, it is liable to fall.
We irrevocably refuse to accept and sanction such a pseudo-doctrine
which is based on the unsettled meaning of political question. The
general proposition that "political questions are not within the province of
the judiciary" is just one of the many numerous general pronouncements
made as an excuse for apathetic, indifferent, lazy or uncourageous
tribunals to refuse to decide hard or ticklish legal issues submitted to
them.
It belongs to the category of that much-vaunted principle of separation of
powers, the handful of sand with which judicial ostriches blind
themselves, as if self-inflicted blindness may solve a problem or may act
as a conjuration to drive away a danger or an evil.
We agree with the majority that the proposal to amend the Constitution
and the process to make it effective, as provided in Article XV of the
Constitution, are matters of political nature, but we cannot agree with
their conclusion that a litigation as to whether said article has been
complied with a violated is beyond the jurisdiction of the tribunals,
because to arrive at this conclusion we must accept as a major premise
the pseudo-doctrine which we have precisely exposed as erroneous and
false.
Is there anything more political in nature than the Constitution? Shall all
questions relating to it, therefore, betaken away from the courts? Then,
what about the constitutional provision conferring the Supreme Court with
the power to decide "all cases involving the constitutionality of a treaty or
a law?"
COLEMAN versus MILLER
The decision of the United States Supreme Court in Coleman vs. Miller
(122 A. L. R., 625) is invoked as the mainstay of the majority position.
No less than eight pages of the majority opinion are occupied by the
exposition and analysis of the decision of the Supreme Court.
The case is invoked as authority for the conclusion that "the efficacy of
ratification by the State legislature of a proposed amendment to the
federal Constitution" and that "the decision by Congress, in its control of
the Secretary of State of the questions of whether an amendment has
been adopted within a reasonable time from the date of submission to
the State legislature," are political questions and not justiciable.
At the outset it must be noted that the two above mentioned questions
have no similarity or analogy with the constitutional questions herein
discussed. The questions as to the efficacy of the ratification by the
Senate of Kansas of the Child Labor amendment proposed by the United
States Congress in June, 1924, and upon the decision of said Congress,
"in its control of the Secretary of State," whether the amendment has
been adopted "within a reasonable time from the date of submission to
the State legislature," either one of them does not raise a controversy of
violation of specific provisions of the Constitution as the ones raised in
the present case.
No specific constitutional provision has been mentioned to have been
violated because in January, 1925, the Legislature of Kansas rejected
the amendment, a copy of the rejection having been sent to the
Secretary of State of the United States, and in January, 1927, a new
resolution ratifying the amendment was adopted by the Senate of Kansas
on a 21-20 division, the Lieutenant Governor casting the deciding vote.
Neither was there such mention of constitutional violation as to the effect
of the previous rejection and of the lapse of time after submission of the
amendment to the State legislature.
No constitutional provision has been pointed out to have been violated
because the Lieutenant Governor had cast his vote or because by the
lapse of time from June, 1924 to March, 1927, the proposed amendment
had allegedly lost its vitality.
It is only natural that, in the absence of a constitutional provision upon
the efficacy of ratification by a State legislature of a proposed
amendment, it was within the ultimate power of the United States
Congress to decide the question, in its decision rendered in the exercise
of its constitutional power, to control the action of the Secretary of State,
and the promulgation of the adoption of amendment could not be
controlled by the courts.
Evidently, the invoked authority has no bearing at all with the matters in
controversy in the present case.
We note, as observed in the majority opinion, that the four opinions in
Coleman vs. Miller, according to the American Law Reports, show
"interestingly divergent but confusing positions of the justices," and are
the subject of an amusing article in 48 Yale Law Journal, 1455, entitled
"Sawing a Justice in Half," asking how it happened that the nine-member
United States Supreme Court could not reach a decision on the question
of the right of the Lieutenant Governor of Kansas to cast his vote,
because the odd number of justices was "equally divided."
How such a "confusing" and "amusing" four-opinion decision in
Coleman vs. Miller could be an authority is beyond our comprehension.
GREEN versus WELLER
One of the authorities upon which the majority relies is the decision of the
Mississippi Supreme Court in Green vs.Miller (32 Miss., 650), quoting
one paragraph thereof.
Here again we have a case of inapplicable authority, unless taken in its
reversed effect.
The Mississippi Supreme Court maintains that there is nothing in the
nature of the submission to the people of a proposal to amend the
Constitution which should cause the free exercise of it to be obstructed or
that could render it dangerous to the stability of the government, but in
making this pronouncement, it assumes that the submission is made "in
a established form," adding that the means provided for the exercise by
the people of their sovereign right of changing the fundamental law
should receive such a construction as not to trample upon the exercise of
their right, and that the best security against tumult and revolution is the
free and unobstructed privilege to the people of the state to change their
Constitution "in the mode prescribed by the instrument."
So the authority, if clearly interpreted, will lead us to the conclusion that
the majority position is wrong because the Mississippi Supreme Court, in
making the pronouncement, upon the assumption that the submission to
the people is made "in a established form" and "in the mode prescribed"
by the Constitution, namely, in accordance with the provisions of the
instrument, the pronouncements would be the opposite if, as in the
present case, the submission of the proposal of amendment to the
people is made through a process flagrantly violative of the Constitution,
aggravated by wanton falsification of public records and tyrannical
trampling of the constitutional prerogatives of duly elected
representatives of the people.
MR. JUSTICE BLACK
The concurring opinion of Mr. Justice Black, joined in by Mr. Justice
Roberts, Mr. Justice Frankfurter and Mr. Justice Douglas, in the
"confusing" and "amusing" decision in Coleman vs. Miller, is also invoked
by the majority, but this other authority seems equally reluctant to offer its
helping hand to a helpless, desperate position.
The major premise of the concurring opinion is as follows: "The
Constitution granted Congress exclusive power to control submission of
constitutional amendments."
Everybody ought to know that no such an unlimited, unchecked,
omnipotent power is granted by our fundamental law to the Congress of
the Philippines. Our Congress may propose amendments or call a
convention to make the proposal, but that is all. Nowhere in the
Constitution can be found any word, any grammatical sign, not even the
faintest hint that in submitting the proposed amendments to the people,
Congress shall have "exclusive power to control the submission." That
submission must be provided by law, and no law may be enacted and
come into effect by the exclusive power of Congress. It needs the
concurring action of the President of the Philippines. And if the law
happens to violate the fundamental law, courts of justice may step in to
nullify its effectiveness. After the law is enacted, its execution devolves
upon the Executive Department. As a matter of fact, it is the Executive
Department which actually submits to the people the proposed
amendment. Congress fixes the date of submission, but the President of
the Philippines may refuse to submit it in the day fixed by law if war,
rebellion, or insurrection prevents a plebiscite from proceeding.
After showing that Mr. Justice Black started his argument from a major
premise not obtainable in the Philippines, his conclusions cannot help the
majority in anyway.
MR. JUSTICE FRANKFURTER
The concurring opinion of Mr. Justice Frankfurter in the "confusing" and
"amusing" case of Coleman vs. Miller is the next authority invoked by the
majority, but the opinion does not offered much help. The justice
maintains that the proceedings for voting in legislative assemblies "are
matters that concern not merely political actions but are also of the very
essence of political action," and then advances the following argument:
"To open the law-courts to such controversies is to have courts sit in
judgment on the manifold disputes engendered by procedures for voting
in legislative assemblies."
The argument has no weight at all. The argument merely displays an
attitude, one of simple distaste for the idea, but fails to give any sensible
reason for the attitude. Ina totalitarian regime, where decisions are
rendered not in answer to the promptings of a sense of justice, but as
expressions of moods, caprices and whims of arbitrary rulers, Mr. Justice
Frankfurter's attitude could be taken as the law, but then it would be
necessary to elevate him first to the category of a fuehrer.
In our jurisdiction personal attitudes are not the law. Here, justice must
be founded on reason, but never on passing unreasoned moods, judicial
or otherwise.
We regret that we cannot agree with the majority's sharing Mr. Justice
Frankfurter's views, which in their judgment are in accord "with sound
principles of political jurisprudence and represent liberal and advanced
thought on the workings of constitutional and popular government. "Our
regret is not for ourselves alone but for those who happen to accept as
authority the unreasoned and unexplained mental attitude of a judicial
officer of a foreign country, praising it even with the much-abused label
as "liberal," notwithstanding the fact that it represents the whimsical rule
of personal attitudes and not the rule of well-matured reason.
THE ENROLLED BILL THEORY
This theory is amply discussed in the memoranda of the parties attached
hereto as Appendices A, B, and C. Although we consider it unnecessary
to enlarge the discussion, we deem it convenient to make a little analysis
of what is stated in the majority opinion. Respondents contend, with the
full approval of the majority, that a duly authenticated bill or resolution
imports absolute verity and is binding on the courts.
The present case is a conclusive evidence of the absurdity of the theory.
How can we accept the absolute verity of the presiding officers'
certification that the resolution in question has been adopted by three-
fourths of all the members of the Senate and of the House of
Representatives, when as a matter of undisputable fact the certification is
false? How can we accept a theory which elevates a false-hood to the
category of truth?
The majority alleges that the rule is the one prevailing in England.
Because the English have committed the nonsense of accepting the
theory, is that reason for Filipinos to follow suit? Why, in the
administration of justice, should our tribunals not think independently?
Our temple of justice is not presided by simians trained in the art of
imitation but by human beings, and human beings must act according to
reason, never just to imitate what is wrong, although such mistakes may
happen to be consecrated as a judicial precedent. It would be
inconceivable for our courts to commit such a blunder.
Repeating what Wigmore has said (4 Wigmore on Evidence, 685,
footnote), the majority states that in the United States the jurisdictions are
divided almost equally pro and con on the theory, although in petitioners'
memorandum Appendix A there appears more up-to-date evidence to the
effect that there is a great majority for the rejection. But to our mind, mere
numbers as to pro and con seem to us immaterial in the decision as to
whether the theory is or is not correct. Numbers do not make reason nor
justice.
The majority contends that the theory conforms to the express policy of
our law-making body, invoking to said effect the now obsolete section
313 of the old Code of Civil Procedure, as amended by Act No. 2210.
Even if we should follow the anachronistic practice of deciding issues
upon the authority of laws which have been repealed or abolished, still
the evidence pointed out by the majority does not support their
contention. Section 313 alluded to enumerates the evidence that may
prove the procedures of the defunct Philippine Commission or of any
legislative body that may be provided for in the Philippines, with the
proviso that the existence of a copy of acts of said commission or the
Philippine Legislature, signed by the presiding officers and secretaries of
said bodies, is a conclusive proof "of the provisions of such acts and of
the due enactment thereof."
This proviso has been repealed by its non-inclusion in the Rules of Court.
Sections 5 and 41 of Rule 123 show conclusively that this Supreme
Court, in making the rules effective since July 1, 1940, rejected the
proviso as unreasonable and unjust. Section 5 provides that we may take
judicial notice of the official acts of Congress and section 41 provides
what evidence can be used to prove said official acts, but nowhere in the
rules can a provision be found that would make conclusive a certification
by the presiding officers and secretaries of both House of Congress even
if we know by conclusive evidence that the certification is false.
The allegation that the theory in question conforms to the express policy
of our lawmaking body, upon the very evidence used in support thereof,
after a little analysis, has to banish as a mid-summer night's dream.
50 AMERICAN JURISDICTION, SECTION 150
In support of the theory of conclusiveness of the enrollment, the authority
of 50 American Jurisprudence, 150 is invoked as reasons for the theory.
We will analyze the reasons adduced:
1. Respect due to a coequal and independent department of the
government. This must be the strongest one, when it is first mentioned. It
is so flimsy to require much discussion. Shall we sacrifice truth and
justice for the sake of a social courtesy, the mutual respect that must be
shown between different departments of the government? Has our sense
of evaluation of spiritual values become so perverted that we can make
such a blunder in our choice? Since when have the social or official
amenities become of paramount value to the extent of overshadowing
the principles of truth and justice?
2. Because without the theory, courts would have to make "a n inquisition
into the conduct of the members of the legislature, a very delicate
power." This second reason is premised not on a democratic attitude, but
rather on a Fascistic one. It is premised on the false belief that the
members of the majority are a king of emperos of Japan, to be
worshipped but never to be discussed. The ideology depicted by the
second reason should be relegated to where it belongs: the archeological
museum.
3. "The rule is also one of convenience." This reason again shows a
perverted evaluation of human values. Is justice to be sacrificed for the
sake of convenience?
4. "Otherwise after relying on the prima facie evidence of the enrolled
bills authenticated as executed by the Constitution, for years, it might be
ascertained from the journals that an act heretofore enforced had never
become a law." This last reason personifies unreasonableness to the nth
degree. So we leave it as it is, as a perpetual evidence of the extent to
which legal stupidity may reach.
WIGMORE ON EVIDENCE
Now let us examine the arguments of the next authority invoked by the
majority, Wigmore on Evidence. We will also analyzed the arguments
relied upon.
1. That to go beyond the enrolled bill "would unsettle the entire statute
law of the State." This argument, as it appears quoted in the majority
decision, is premised on the unreliability of legislative journals, and it
seems to depict a mind poisoned by prejudice, as shown by the
following: "We are to remember the danger, under the prevalence of such
a doctrine, to be apprehended from the intentional corruption of
evidences of this character. It is scarcely too much to say that the legal
existence of almost every legislative action would be at the mercy of all
persons having access to these journals. . . ."
The argument should be taken into consideration in connection with
American experience, which seems not to be too flattering to our former
metropolis.
Our own personal experience of more than a decade in legislative
processes convinces us that Wigmore's assumption does not obtain in
the Philippines. It is true that in the pre-constitution legislative
enactments we have seen few instances in which there had been
disagreement between what has actually been passed, as shown by the
journal, and the authenticated enrolled bill. But the instances were so few
to justify entertaining here the same fears entertained by Wigmore in
America. Although those instances were few, we fought to correct the evil
in the Constitutional Convention, where we were able to introduce the
following revolutionary provision in the Constitution: "No bill shall be
passed by either House unless it shall be printed and copies thereof in
their final from furnished each member at least three calendar days prior
to its passage, except when the President shall have certified to the
necessity of its immediate enactment. Upon the last reading of a bill no
amendment thereof shall be allowed, and the question upon its passage
shall be taken immediately thereafter, and the yeas and nays entered in
the journal." (Section 21 [2], Article VI of the Constitution.)
This provision is an effective guarantee against the situation depicted by
Wigmore's fears.
2. To the argument that if the authenticated roll is conclusive upon the
courts, then less than a quorum of each House may by the aid of
presiding officers impose laws upon the State in defiance of the inhibition
of the Constitution, Wigmore answers: "This perhaps cannot be avoided
absolutely. But it applies also to all human agencies. It is not fit that the
judiciary should claim for itself a purity beyond all others; nor has it been
able at all times with truth to say that its high places have not been
disgraced."
The answer is unconvincing. Because there can be and there have been
blundering, disgraceful, or corrupt judicial officers is no reason why
arbitrary presiding officers and members of the legislature should be
allowed to have their way unchecked. Precisely the system of checks
and balances established by the Constitution presupposes the possibility
of error and corruption in any department of government and the system
is established to put a check on them.
When the question of an unconstitutional, arbitrary or corrupt action by
the legislature is placed at the bar of justice, the judiciary must not shrink
from its duty. If there is corruption in the judiciary, our laws provide the
proper remedy. Even we, the members of the highest tribunal, cannot
with impunity commit "culpable violation of the Constitution, treason,
bribery, or other high crimes" without being liable to be removed from
office on impeachment, and we hope, if there is such a case, that the
House of Representatives and the Senate will do their duty in
accordance with Article IX of the Constitution, and not follow the
uncourageous example which is given under the intellectual tutelage of
Wigmore.
THE CONSTITUTIONAL NUMERICAL RULES
The three-fourth rule has been provided in Article XV of the Constitution
as a guarantee against the adoption of amendments to the fundamental
law by mere majorities.
The Constitution must be accorded more stability than ordinary laws and
if any change is to be introduced in it, it must be in answer to a pressing
public need so powerful as to sway the will of three-fourths of all the
members of the Senate and of the House of Representatives. Said three-
fourth rule has been adopted by the Constitutional Convention, as all the
other numerical rules, with the purpose of avoiding any doubt that it must
be complied with mathematical precision, with the same certainty of all
numbers and fractions expressed or expressible in arithmetical figures.
Where the Constitution says three-fourths of all the members of the
Senate and of the House of Representatives voting separately, it means
an exact number, not susceptible of any more or less. All the members
means that no single member should be excluded in the counting. It
means not excluding three Senators and eight Representatives as
respondents want us to do in order not to cause any inconvenience to the
presiding officers and secretaries of both Houses of Congress who had
the boldness of certifying that the three-fourth rule had been complied
within the adoption of the resolution in question, when such a certification
is as false as any falsehood can be.
The three-fourth rule must not be left to the caprice of arbitrary majorities,
otherwise it would be the death knell of constitutionalism in our country. If
a constitutional provision can be so trifled with, as has happened in the
adoption of the resolution in question, it would mean breaking faith with
the vitality of a government of laws, to enthrone in its stead a whimsical
government of men.
the people and it will affect future generations to unimaginable extent.
The Constitutional Convention had thought it wise that before such a
momentous proposal could be submitted to the people the three-fourth
rule should be adhered to by Congress.
QUOTATION FROM THE JALANDONI CASE
Months ago we stated: "It is high time to sound the clarion call that will
summon all the forces of liberalism to wage a crusade for human
freedom. They should put on the armor of righteousness and rally behind
the banner for the vindication of the principles and guarantees embodied
in the Constitution and the high purposes of the Chapter of the United
Nations." This, we said in our dissenting opinion in People vs.
Jalandoni, L-777. Concerning the judgment that the future may pass
upon the actuations of the Supreme Court, in that same opinion we
ventured that the historian army, under the heading of "Epoch of Great
Reaction," write as follows:

The Constitution contains several numerical provisions. It requires that

the Senate shall be composed of 24 Senators (section 2, Article VI); that
Congress shall by law make an apportionment within three years after
the return of every enumeration, and not otherwise (section 5, Article VI);
that each House may expel a member with the concurrence of two-third
of all the members (section 10 [3], Article VI); that electoral tribunals shall
each be composed of nine members, three Justices of the Supreme
Court and six legislature members (section 11, Article VI); that to overrun
the veto of the President, the concurrence of two-thirds of all the
members of each House is necessary (section 20 [1], Article VI), and in
certain cases the concurrence of three-fourths of all the members of each
House is necessary (section 20 [2], Article VI); that Congress shall, with
the concurrence of two-thirds of all the members of each House, have
the sole power to declare war (section 25, Article VI); that no treaty or law
may be declared unconstitutional without the concurrence of two-thirds of
all the members of the Supreme Court (section 10, Article VIII); that the
House of Representatives shall have the sole power of impeachment by
a vote of two-thirds of all its members (section 2, Article IX); and that the
Senate shall have the sole power to try all impeachments, but no person
shall be convicted without the concurrence of three-fourths of all the
members of the Senate (section 3, Article IX).
So it can be seen that the numerical rules inserted in the Constitution
affect matters not of momentary but of momentous importance. Each and
every one of them should be given effect with religious scruple, not only
because our loyalty to the sovereign people so requires, but also
because by inserting them the Constitutional Convention had abided by
the wise teachings of experience.
By denying the petition and allowing those responsible for the
unconstitutional adoption of the resolution in question to have their way is
to set up a precedent that eventually may lead to the supremacy of an
empire of lawlessness. It will be tantamount to opening Pandora's box of
evils and disasters.
The power to declare was can only be exercised by Congress with the
concurrence of two-thirds of all the members of each House. From now
on, by the simple expediency of certification by the presiding officers and
secretaries of both Houses that two-thirds had voted where a bare
majority had voted in fact, said majority may plunge our people into a
maelstrome of war.
The Constitution provides that the power of impeachment needs the vote
of two-thirds of all the members of the House of Representatives. From
now on, a mere plurality of one will be enough to put impeachable high
officials, including the President, on the carpet.
At no epoch of its history has the Supreme Court shown to be
most reactionary and retrogressive. When the victims of a
constitutional violation, perpetrated by a group of the highest
officials of the government, came to if for redress, it adopted a
hands-off policy, showing lack of the necessary vitality to
grapple with the situation and finding refuge in a comfortable
retreat, completely disappointing those who have pinned their
faith and hope in it as the first pillar of the Constitution and the
inexpugnable bulwark of human fundamental rights. The issue
of human freedom was disposed of by them most
discouragingly by nullifying the right of an accused to be free
on bail on appeal, in flagrant violation of a constitutional
guarantee and of one of the fundamental purposes and
principles of the Charter of the United Nations.
Upon touching the decision of this Court in the instant case, the same
historian may record that the highest tribunal of the new Republic of the
Philippines has struck the hardest blow to the Philippine constitutional
system, by refusing to do its duty in giving redress in a clear case of
violation of the fundamental law, to the great disappointment, despair and
apallment of millions of souls all over the world who are pinning their
hopes on constitutionalism for the survival of humanity.
The ideal of one world oftenly enunciated by progressive leaders in the
deliberations of the several organs of the United Nations is predicated in
the adoption of a single standard of laws, compulsory within all
jurisdictions of our planet. The ethology of all mankind must be shaped
under the pattern of that single legal standard. But the whole system is
liable to crash if it is not founded on the rock bed of the elemental
principle that the majesty of the law must always be held supreme.
To keep inviolate this primary principle it is necessary that some of the
existing social organs, moral attitudes and habits of thinking should
undergo reforms and overhauling, and many fixed traditional ideas
should be discarded to be replaced with more progressive ones and
inconsonance with truth and reason. Among these ideas are the wrong
ones which are used as premises for the majority opinion in this case.
The role of innovators and reformers is hard and often thankless, but
innovation and reform should continuously be undertaken if death by
stagnation is to be avoided. New truths must be discovered and new
ideas created. New formulas must be devised and invented, and those
outworn discarded. Good and useful traditions must be preserved, but
those hampering the progressive evolution of cultured should be stored
in the museum of memory. The past and the present are just stepping
stones for the fulfilment of the promises of the future.

To convict an impeached officer the fundamental law requires the

Since the last decade of the nineteenth century, physical science had
concurrence of three-fourths of all the members of the Senate. From now
progressed by leaps and bounds. Polonium and radium were discovered
on, that three-fourth rule may be dispensed with or circumvented by not
by Madam Curie, Rontgen discovered the X-ray, and Rutherford the
counting three actual Senators, as has been done in the resolution in
alpha, beta and gamma particles. Atom ceased to be the smallest unit of
question, and thereby oust the President of the Philippines if he happens
matter to become an under-microscopic planetarian system of neutrons,
not to be in the good graces of a senatorial majority.
protons, and electrons.

Without entering into the merits of the proposed constitutional

Ion exchangers are utilized to make of electrons veritable lamps of
amendment, to submit which to the people high-handed means have
Aladdin. Plants are grown in plain water, without any soil, but only with
been resorted to, there can be no question that it is of vital importance to
anions and cations. Sawdust has ceased to be a waste matter, and from
it is produced wood sugar, weighing one-half of the sawdust processed.
Inter-stellar space vacuum, almost absolute, is being achieved to serve
ends that contribute to human welfare. Bacteria and other microbes are
harnessed to serve useful human purposes. The aspergillus niger is
made to manufacture the acetic to produce vinegar for the asking.
The penicillum notatum and the bacillus brevis are made to produce
penicillin and tyrothricin, two wonder drugs that are saving many lives
from formerly lethal infections. DDT decimates harmful insects, thus
checking effectively malaria, an illness that used to claim more than one
million victims a year in the world. The creation of synthetics had
enriched the material treasures offered to man by nature. Means of
transportation are developed to achieve supersonic speeds. Many
scientific dreams are fast becoming marvelous realities. Thus, science
marches on. There is no reason why the administration of justice should
not progress onward, synchronized with the rhythm of general human
advancement towards a better future.
The fact that the majorities of the two chambers of Congress have
without any qualm violated Article XV of the Constitution and the majority
of this Court, instead of granting the proper relief provided by law,
preferred to adopt the comfortable attitude of indifferent by-standers,
creates a situation that seems to be ogling for more violations of the
fundamental law. The final results no one is in a position to foresee.
Our vote is for the granting of the petition.
BRIONES, M., con quien esta conforme FERIA, M., disidente:
Por segunda vez en menos de un año nos Ilaman a decidiry arbitrar
sobre una violacion de la Constitucion — elcodigo fundamental de
nuestro pais. A media dos del año pasado se trataba del recurso
interpuesto ante esta misma Corte Suprema por tres Senadores 1 que se
quejaban dehaber sido privados injusta y arbitrariamente de su derecho
a sentarse en el Senado de Filipinas y a particular y votar en sus
deliberaciones, con grave infraccion y detrimento de la Constitucion que
ampara tal derecho. Ahora esos mismos Senadores acuden de nuevo a
esta Corte para quejarse de otra violacion de la Constitucion, pero
estavez no vienen solos: les acompañan otros cinco miembros del
Senado, diecisiete miembros de la Camarra de Representantes y tres
jefes de aagrupaciones o partidos politicos — Democratic Alliance,
Popular Front y Philippine Youth Party. Jose O. Vera es recurrente en su
doble capacidad de miembro del Senado y Presidente del Partido
Nacionalista. De modo que los recurrentes suman veintiocho:
8Senadores, 17 Representantes y 3 particulares.2 Tienenun comun
denominador, a saber: que son todos ciudadanos de Filipinas, y,
ademas, contribuyentes y electores.
Los recurridos son el Presidente y miembros de la Comision de
Elecciones, el Tesorero de Filipinas, el Auditor General y el Director del
Buro de Imprenta.3
El objeto del recurso es recabar de esta Corte un mandamiento de
prohibicion dirigigo a los recurridos para que estos, sus agentes,
empleados, subordinados y otras personas que actuen bajo su
superintendencia o en su nombre "se abstengan y desistan de dar los
pasos tendentes haciala celebracion de un plebiscito e eleccion general
el 11 de Marzo, 1947, y de imprimir la resolucion (sobre reformade los
articulos 13.º y 14.º de la Constitucion), las balotas y otros papeles
necesarios en relacion con dicho plebiscito,y de desembolsar o de
autorizar el expendio de fondos publicos para dicho proposito."
Para la mejor comprension del asunto estimo necesariopublicar integro a
continuacion el texto de la Resolucion conjunta que contiene la
propuesta reforma a la Constitucion, resolucion que constituye la materia
u objeto de la consulta popular en el referido plebiscito de 11 de Marzo, y
es la misma que en el lexico corriente de la prensa y del publico se
conoce por resolucion sobre paridad o igualdad de derecdhos
constitucionales a favor de los americanos, esdecir, que concede a estos
iguales derechos que a los filipinosen la propiedad y cultivo de terrenos
publicos, en la explotacion de nuestros recursos naturales como
bosques,minas, pesca y fuerza hidraulica, y en la propiedad y operacion
de utilidades publicas. He aqui su texto:
RESOLUTION OF BOTH HOUSES PROPOSING AN AMENDMENT 
TO THE CONSTITUTION OF THE PHILIPPINES 
TO BE APPENDED AS AN ORDINANCE THERETO.
Resolved by the Senate and House of Representatives of the
Philippines in joint session assembled, by a vote of not less
than three-fourths of all the Members of each House voting
separately, to propose, as they do hereby propose, the
following amendment to the Constitution of the Philippines to
be appended as an Ordinance thereto;
ORDINANCE APPENDED TO THE CONSTITUTION
Notwithstanding the provisions of section one, Article Thirteen,
and section eight, Article Fourteen, of the foregoing
Constitution, during the effectivity of the Executive Agreement
entered into by the President of the Philippines with the
President of the United States on the Fourth of July, nineteen
hundred and forth-six, pursuant to the provisions of
Commonwealth Act Numbered Seven hundred and thirty-three,
but in no case to extend beyond the third of July, nineteen
hundred and seventy-four, the disposition, exploitation,
development, and utilization of all agricultural, timber, and
mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces and sources of
potential energy, and other natural resources of the
Philippines, and the operation of public utilities, shall, if open to
any person, be open to citizens of the United States and to all
forms of business enterprise owned or controlled, directly or
indirectly, by citizens of the United States in the same manner
as to, and under the same conditions imposed upon, citizens of
the Philippines or corporation or associations owned or
controlled by citizens of the Philippines.
This amendment shall be valid as a part of the Constitution
when approved by a majority of the votes cast in an election at
which it is submitted to the people for their ratification pursuant
to Article XV of the Constitution.
Adopted,
(Sgd.) JOSE AVELINO
President of the Senate
(Sgd.) EUGENIO PEREZ
Speaker of the House of Representatives
We hereby certify that the foregoing Resolution was adopted
by both Houses in joint session assembled in the Hall of the
House of Representatives on September 18, 1946.
(Sgd.) ANTONIO ZACARIAS
Secretary of the Senate
(Sgd.) NARCISO PIMENTEL
Secretary of the House of Representatives
Para comprobar la voluntad popular sobre la reforma constitucional
propuesta el Congreso de Filipinas ha aprobadola Ley No. 73 de la
Republica que dispone y ordena la celebracion de un plebiscito para el
11 de Marzo de esteano, provee a la forma de celebrarlo y consigna el
presupuesto necesario para sufragar los gastos del mismo. Siuna
mayoria de los electores votare afirmativamente, la reformaquedara
ratificada y estara en vigor por un periodo de 28 años; en caso contrario,
quedara rechazada.
Los recurrentes alegan y sostiened que la resolucion conjuntade que se
trate es ilegal y nula por no haberse aprobadocon los votos de las tres
cuartas-partes (3/4) del Congreso, conforme a lo provisto en el Articulo
XV de la Constitucion, a saber:
 SECTION 1. The Congress in joint session assembled, by a
vote of three-fourths of all the Members of the Senate and of
the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that
purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the
people for their ratification.
Se alega que cuando se considero y aprobo la citada Resolucion
conjunta el Senado se componia actualmente de 24 miembros, es decir,
el numero exacto fijado en la Constitucion, y la Camara de
Representantes de 96 miembros, es decir, dos menos que el numero
señalado en la Constitucion, pues does dimitieron despues de las
elecciones, uno para aceptar un cargo en el ramo ejecutivo del gobierno
y otro para aceptar un nombramiento en el servicio diplomatico. Sin
embargo, segun la demanda de los recurrentes, en el Senado solo se
permitio votar a 21 miembros, excluyen dose de las deliberaciones y
votacionfina l de la Resolucion a tres miembros, a saber; los Senadores
Vera, Diokno y Romero. De los referidos 21 miembros, votaron a favor
de la Resolucion 16 y en contra 5; asi que — arguyen los recurrentes —
la Resolucion no quedo aprobada, por parte del Senado, con el numero
constitucionalde tres cuartas-partes (3/4) de los miembros, elcual debia
ser 18.
En la Camara de Representantes, segun los recurrentes, solo se
permitio votar a 88 miembros, excluyen dose de las deliberaciones y
votacion final de la resolucion a 8 miembros, a saber: Representantes
Alejo Santos y Jesus B. Lava, de Bulacan; Reps. Jose Cando y
Constancio P. Padilla, de Nueva Ecija; Reps. Amado M. Yuson y Luis
Taruc, de Pampanga; Rep. Alejandro Simpauco, de Tarlac; y Rep.
Vicente F. Gustilo, de Negros Occidental. De los referidos 88 miembros
votaron a favor de la Resolucion solo 68; asi que — arguyen los
recurrentas — la Resolucion tampoco quedo aprobada, por parte de la
Camara, con el numero constitucional de tres cuartas-partes (3/4) partes
de sus miembros, el cual debia ser 72, por lo menos, y no 68, aun dando
por descontados los dos miembros que despues de las elecciones
aceptaron cargos en otros ramosdel gobierno.
Siendo inconstitucional y nula la Resolucion basica deque se trata,
consiguientemente los recurrentes tachantambien de inconstitucional e
invalida la referida Ley de la Republica No. 73 que convoca una eleccion
general o plebiscito para el 11 de Marzo de 1947 a fin de someter
alpueblo para su ratificacion o repudio la enmienda constitucional
propuesta, y que consigna la suma de P1,000,000 para los gastos en
que se hubiere de incurrir con motivo dela celebracion de dicho
plebiscito, entre habilitacion deprecintos electorales, pago de dietas de
los inspectores y costo de la a impresion, publicacion, fijacion y
distribucion gratuita de copias de la propuesta enmienda en ingles,
español y otros dialectos del pais.
Los recurridos, despues de admitir ciertas alegacioneses enciales de la
demanda y negar otras, plantean las siguientes defensas especiales:
Primera defensa especial: que una ley o resolucion impresa (enrolled Act
or Resolution) de ambas Camaras del Congreso, adverada o autenticada
con las firmas de los Presidentes de dichas Camaras, es prueba
concluyente deque la misma fue aprobada por el Congreso; que, en
virtud del respeto que se debe a un ramo igual y coordinado del
gobierno, no es permisible una investigacion judicial desi la misma a fue
o no aprobada debida y propiamente por el Congreso; y que, por tanto,
esta Corte Suprema carecede jurisdiccion para conocer y enjuiciar los
puntos suscitados por los recurrentes en relacion con la validez y
constitucionalidad de la resolucion en cuestion.
Empero si la primera defensa especial no fuese sostenida, los recurridos
alegan, por via de segunda defensa especial, que la resolucion
controvertida fue aprobada a conlos votos de tres cuartas-partes (3/4) de
todos los miembros cualificados del Senado y de la Camara de
Representantes votando separadamente, en consonancia con el Articulo
XV, apartado 1, de la Constitucion, y que consiguientementela ley de la
Republica No. 73 que ordena suplanteamiento ante el pueblo para su
ratificacion o desaprobacion, senala una fecha para la celebracion de
estaconsulta plebiscitaria y consigna fondos publicos para talfin, es
valida y constitucional.
Consta en autos una estipulacion de hechos concertadaentre las partes,
pero no se extracta aqui para no alargar innecesariamente esta
disidencia, pero se hara particular referencia a ella mas adelante a
medida que las exigenciasde la argumentacion lo demanden.
Es preciso hacer constar que los abogados de ambas parteshan hecho
cumplida justicia a la tremenda importancia del asunto haciendo
extensos estudios y pacientes investigaciones de la jurisprudencia
pertinente, en particular la americana, teniendo en cuenta la influencia
profunda y decisiva de aquel pais en nuestras ideas politicas y
constitucionales en virtud de la historica y estrecha convivenciade casi
medio siglo.
Es que la cosa no era para menos. Puede decirse, sinexageracion, que
excepto en cuatro momentos culminantes de su historia — el primer grito
de rebelion contra España en Agosto de 1896, la ruptura de hostilidades
contra Americaen Febrero de 1899, la aceptacion de la Ley de
Independencia en el plebiscito nacional de 1935, y la guerra contra el
Japon en 1941 — en ningun momento, en los ultimos 60 años, ha sido
Ilamado el pueblo filipino a rendiruna decision tan importante, de
trascendencia e implicacionestan graves, tan tremendas, como la que
tiene que hacer en el plebiscito de 11 de Marzo proximo con motivode la
Resolucion congresional discutida en el presente asunto.
Es una de esas decisiones que hacen historia; que parabien o para mal
sacuden los cimientos de un pais tal quesi fuese un fenomeno cosmico;
que determinan el curso desu existencia y deytinos nacionales; que
deciden, en una palabra, de la suerte de generaciones ya existentes y
degeneraciones que no han nacido todaviaa. Es una de esas decisiones
que para hacerla los pueblos deben hincarse humildemente de rodillas,
de cara al cielo, pidiendo al Dios de los pueblos y naciones la gracia de
una salvadora inspiracion de Su infinita sabiduria . . ..
II
Para los efector de una amplia perspectiva historica quepermita destacar
en toda su plenitud los contornos de losformidables "issues" o puntos
constitucionales debatidos en el presente asunto, parece conveniente
que repasemos, siquiera brevemente (en las notas marginales lo que no
cabeen el mismo texto de esta disidencia), 4 los preceptos basicos de la
Constitucion que se trate de reformar conla Resolucion congresional de
que tantas veces se ha hechomerito. Helos aqui:
ARTICLE XIII. — CONSERVATION AND UTILIZATION OF NATURAL
RESOURCES.
SECTION 1. All agricultural, timber, and mineral lands of the
public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which is
owned by such citizens, subject to any existing right, grant,
lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural
resources, with the exception of public agricultural land, shall
not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five
years, renewable for another twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, in which
cases beneficial use may be the measure and the limit of the
grant.
ARTICLE XIV. — GENERAL PROVISIONS
xxx     xxx     xxx
SEC. 8. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations
or other entities organized under the laws of the Philippines,
 sixty per centum of the capital of which is owned by citizens of
the Philippines, nor shall such franchise, certificate, or
authorization be exclusive in character or for a longer period
than fifty years. No franchise or right shall be granted to any
individual, firm, or corporation, except under the condition that
it shall be subject to amendment, alteration, or repeal by the
Congress when the public interest so requires.
Como queda dicho, la reofrma propuesta es en el sentidode que, no
obstante lo dispuesto en los preceptos arribatranscritos, "durante la
efectividad del Convencio Ejecutivo perfeccionado entre el Presidente de
Filipinas y el Presidente de los Estados Unidos el 4 de Julio de 1946, al
tenorde las disposiciones de la Ley del Commonwealth No. 733, pero
que en ningun case se extendera mas alla del 3 de Julio de 1974, la
disposicion, explotacion, desar rollo y utilizacionde todos los terrenos
agricolas, forestales y minerales de dominio publico, de aguas,
minerales, carbon, petroleo y otros minerales petroliferos, de todas las
fuerzasy fuentes de energia potencial, asi como de otros recursos de
Filipinas, y la operacion de utilidades publicas, si abiertos para cualguier
persona, quedan abiertos para los ciudadanos de los Estados Unidos y
para todas las formas de negocio y empresa de la propiedad o
controladas, directao indirectamente, por ciudad años de los Estados
Unidos, de la misma manera y bajo las mismas condiciones impuestasa
los ciudadanos de Filipinas o a las corporaciones o asociaciones de la
propiedad o controladas por ciudadanos de Filipinas (Resolucion
conjunta del Congreso filipino, supra).
Podemos tomar conocimiento judicial — pues, sobre ser historia
contemporanea, se trata de las labores y procesos deliberativos de la
misma Asamblea Constituyente — de quelos preceptos capitales arriba
transcritos constituyen la expresion acabada de toda la madurez de
juicio, de toda laprudencia y sabiduria de que eran capaces no solo los
autores de la Constitucion y los Delegados que la aprobaron, sino el
pueblo filipino que la ratifico en el correspondiente plebiscito nacional
convocado al efecto. En pocas resoluciones ha habido tanta firmeza y
tan fuerte unanimidadentre nuestros partidos politicos y sus caudillos
como enesa recia y constructiva afirmacion de nacionalismo. Nadamejor,
creo yo, que las siguientes palabras para definir elespiritu, la filosofia que
informa esas provisiones:
This provision of the Constitution has been criticized as
establishing the outworn Regalian doctrine which, it is
suggested, may serve to retard the economic development of
the Philippines. The best encomium on this provision is
probably the very criticism launched against it. It is
inconceivable that the Filipinos would liberalize the acquisition,
disposition and exploitation of our natural resources to the
extent of permitting their alienation or of depriving the people of
this country of their heritage. The life of any nation depends
upon its patrimony and economic resources. Real freedom, if it
is to be lasting, must go hand in hand with economic security, if
not economic prosperity. We are at most usufructuaries of
ourdomains and natural resources and have no power to
alienate them even if we should want to do so. They belong to
the generations yet unborn and it would be the height of folly to
even think of opening the door for their untrammelled
disposition, exploitation, development or utilization to the
detriment of the Filipinos people. With our natural resources in
the hands of foreigners what would be there left except the
idealism of living in a country supposedly free, but where
freedom is, after all, an empty dream? We would be living in a
sumptuous palace that it not ours! We would be beggars in our
own homes, strangers in our own land!
Friendship and amity towards all nations are compatible with
the protection of the legitimate interests of the Filipino people.
There is no antagonism or hostility towards foreigners but sane
nationalism and self-protection which every country of the
world is practising today in the interest of self-preservation.
(The Three Powers of Government, by Laurel, pp. 117-118.)
Los criticos de la enmienda constitucional propuesta pueden discutir
libremente, como cumple a los ciudadanos de un pais democratico, los
meritos y demeritos de lamisma. Pueden combatirla con toda clase de
razones — morales, politicas, economicas, financieras, internacionales, y
hasta de decencia — y naturalmente defenderla tambiensus partidarios
desde todos los angulos. Podrian los opositoreshacer una minuciosa
diseccion de su fraseologia yacaso hallar en sus repliegues peligrosas
implicaciones, posibles riesgos, como en ese par de adverbios "directa o
indirectamente", a cuyo socaire podrian acogerse corporacioneso
asociaciones extranjeras controladas solo indirectamente por
ciudadanos americanos para concurrir en la explotacion de nuestros
terrenos publicos y recursos naturales, y en la operacion de utilidades
publicas. Todo estolo pueden hacer, y algo mas. Pero es obvio,
elemental quesemejante discusion no compete a esta Corte Suprema,
sinoen todo caso a otros poderes constituidos.
Nosotros no estamos para determinar y enjuiciar labondad o maldad de
la enmienda propuesta. Lo unico quenos incumbe hacer, ya que la
cuestion se halla propiamente planteada ante nosotros, es resolver si la
enmienda ha sido aprobada por el Congreso de acuerdo con el mandato
expreso de la Constitucion en materia de enmiendas; si losrequisitos que
la Constitucion señala para poder enmendarla — requisitos que
son mandatorios, categorica menteimperativos y obligatorios — se han
cumplido o se han violado. Como se dijo bien en el asunto de
Gray vs.Childs ([1934], 156 So., 274, 279), ". . . No podemos decir queel
estricto requerimiento relativo a las enmiendas se puede renunciar a
favor de una buena enmienda e invocar encontra de otra mala. . . . No
compete a los tribunales el determinar cuando una enmienda propuesta
es sabia y cuando no lo es. Los tribunales nada tienen que ver conla
sabiduria de la politica. Pero es deber de los tribunales, cuando se les
pide que lo hagan, el determinar si o no el procedimiento adoptado para
la aprobacion de la enmiendaes el señalado por los terminos de la ley
organica.
Todo lo que se lha dicho hasta aqui para poner de relievela filosofia de
nuestra Constitucion en materia de recursos naturales y utilidades
publicas, se ha dicho no como expresion de un criterio propio, sino tan
solo para subrayar todala gravedad, toda la densidad del asunto, y
prevenir entodo caso los peligros de una rutinaria y
complacienteliviandad. Como tambien se dijo en el citado asunto
deGray vs. Childs, "la enmienda de la ley organica del Estado o nacion
no es una cosa para ser tomada ligeramente, ni para ser hecha de lance
o al azar. Es una cosa seria. Cuando la enmienda es aprobada, viene a
ser parte de laley fundamental del pais y puede significar el bienestar
omaldicion de las generaciones de la nacion donde se haceparte del
codigo fundamental."
Este pronunciamiento adquiere todo el valor y toda la resonancia de una
consigna en el presente caso en que lareforma propuesta afecta
vitalisimamente al patrimonionacional del pueblo filipino. ¿No son los
recursos naturalesy las utilidades publicas el tesoro de una nacion,
labase que sustenta su existencia, la espina dorsal de sueconomia? Por
tanto, jamas se podra exagerar el celo, la vigilancia que el pueblo y sus
organos naturales ejercenpara que las salvaguardias impuestas por la
misma Constitucionen relacion con el proceso y tramitacion de
todaenmienda constitucional se cumplan y observen con el maximo
rigor.
Aqui no caben excusas ni subterfugios. Ni siquiera cabeescudarse tras la
doctrina de la separacion de poderes quela mayoria de esta Corte invoca
para justificar su inaccion, su pasividad, su politica de "manos fuera",
alegando que el presente asunto es coto vedado para nos otros, algo
quecae fuera de nuestra jurisdiccion, eso que en derecho politico y
constitucional se llama materia politica no-justiciable.
III
La mayoria rehusa asumir jurisdiccion sobre el presente caso porque
dice que versa sobre una cuestion politica, ylas cuestiones politicas caen
fuera de la competencia de los tribunales de justicia. Creo que esto es
un error, dicho seacon todos los respetos debidos a mis ilustres
compañeros que sostienen tal opinion. ¿Hay acaso algun documento
mas politico que la Constitucion? Si la opinion de lamayoria fuese valida
y acertada, practicamente ninguna violacion de la Constitucion podria ser
enjuiciada por los tribunales, pues cual mas, cual menos, casi todas las
transgresionesconstitucionales, sobre todo las que comete elpoder
legislativo o el poder ejecutivo, tienen caracter politico. Bajo esa opinion
la Constitucion seria una letramuerta, un simple pedazo de papel: los
poderes constituidos, los individuos que los componen, podrian
infringirim punemente la Constitucion sin que ningun arbitro
constitucional pudiera intervenir ordenadamente para restaurarla
suprema majestad de la ley fundamental violada. Esclaro que esto
podria conducir facilmente al caos, a la anarquia, a la revolucion,
dependiendo solo el resultado de lamayor o menor docilidad del pueblo,
del grado de elasticidad politica de las masas. Y es claro que ninguno
puedequerer este triste destino para nuestro pais.
Creo sinceramente que una mejor y mas correcta evaluacion de nuestro
sistema de gobierno que esta esencial mentecalcado en el americano,
es que bajo la teoria relativa de las eparacion de poderes, ningun poder
es superior al pueblo cuya voluntad esta encarnada en la Constitucion.
Los poderes no son mas que agentes, mandatarios, servidores: el
pueblo es el amo, el mandante, el soberano. Y el pueblo ordena y
manda por medio de la Constitucion — esta es suvoz el verbo hecho
carne politica y social, el soplo vital quetraduce y transmuts su espiritu
en postulados esenciales deregulacion y gobierno.
Todo eso esta bien, no puede haber seria objecion a ello,dicen los
sostenedores absolutistas de la teoria de la sedparacion de poderes.
Pero se pregunta: ¿quien señala lavoluntad del pueblo tal como esta
plasmada en la Constitucion? ?Quien es el profeta que desciende del
Sinai para revelar las tablas de la ley? ¿Quien ha de arbitrar en los
conflictos constitucionales, o quien ha de decidir los litigios propiamente
planteados en que se ventilan una infraccion de la Constitucion? ¿Hay
un peligroso vacio en nuestro mecanismo constitucional, o por el
contrario, los resorteestan todos bien situados, capaces de operar y
funcionarade cuada y eficientemente? Esto es precisamente el busilis, la
cuestion batallona.
No puede haber duda en la contestacion a tales preguntas. Bajo nuestro
sistema de gobierno el poder judiciales el llamado a señalar, a interpretar
la ley; y en los conflictoso transgresiones constitucionales esta Corte
Suprematiene la ultima palabra, le compete el arbitraje supremoy final.
Bajo nuestra mecanica constitucional, igual quebajo la americana, se da
la aparente paradoja de que la superior facultad, el supremo negocio de
interpretar la voluntad del pueblo tal como esta expresada mas o menos
permanentemente en la Constitucion, no corresponde propiamentea
ninguno d e los poderes electivos, los que se renuevanperiodicamente,
sino al poder que si bien es denombramiento en su origen, tiene, sin
embargo, sentido deperpetuidad, quiero decir, es vitalicio en la
complexion y funcion de los individuos que los componen — el poder
judicial. La sabiduria peculiar, la originalidad del sistemaconsiste
precisamente en eso: en haber alojado el supremo arbitraje con relacion
a los conflictos y transgresiones constitucionales en un poder del Estado
al cual deliberadamentese le ha dotado de un clima psicologico y moral
el maspropicio posible a la objetividad y desasimiento de lasdisputas
politicas y discordias civiles, situandosele por encimade los vaivenes de
la politica al uso y las veleida desde la suerte electora. "Esto es lo que va
implicto en la expresion supremacia judicial, que propiamente es la
facultad de revision judicial bajo la Constitucion" (Angara contra
Comision Electoral, 63 Jur. Fil., 171).
The very essence of the American conception of the
separation of powers is its insistence upon the inherent
distinction between law-making and law-interpreting, and
its assignment of the latter to the judiciary, a notion which,
when brought to bear upon the Constitution, yields judicial
review." (Corwin, The Twilight of the Supreme Court, p. 146.)
En el famoso asunto de Marbury vs. Madison, supra, el Tribunal
Supremo de los Estados Unidos, por boca de sugran Chief Justice John
Marshall, en terminos inequivocos definio y explico las facultades de la
judicatura para poneren vigor la Constitucion como la suprema ley del
pais, y declaro que es terminantemente de la competencia y deberdel
departamento judicial el decidir cual es la ley querige.
The reasoning of Webster and Kent is substantially the same.
Webster says: "The Constitution being the supreme law, it
follows of course, that every act of the Legislature contrary to
the law must be void. But who shall decide this question? Shall
the legislature itself decide it? If so, then the Constitution
ceases to be legal and becomes only a moral restraint for the
legislature. If they, and they only, are to judge whether their
acts be conformable to the Constitution, then the Constitution
is advisory and accessory only, not legally binding; because, if
the construction of it rest wholly with them, their discretion, in
particular cases, may be in favor of very erroneous
constructions. Hence the courts of law, necessarily, when the
case arises, must decide upon the validity of particular acts."
Webster, Works, Vol. III, 30. (Willoughby on the Constitution of
the United States, Vol. 1, 2d edition, pp. 4, 5.)
En el citado asunto de Angara contra Comision Electoral dijimos tambien
lo siguiente:
. . . Y la judicatura, a su vez, con el Tribunal Supremo por
artbitro final, frena a con efectividad a los demas departament
of en elejercicio de su facultad de determinar la ley, y de aqui
que pueda declarar nulos los actos ejecutivos y legislativos
que contravengan la Constitucion.
Esta doctrina reafirmo en el asunto de Planas contra Gil (67
Phil., 62), a saaber:
. . . As far as the judiciary is concerned, which it holds' neither
the sword nor the purse' it is by constitutional placement the
organ called upon to allocate constitutional boundaries, and to
the Supreme Court is entrusted expressly or by necessary
implication the obligation of determining in appropriate cases
the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation. (Section 2 [1], Art. VIII,
Constitution of the Philippines.) In this sense and to this extent,
the judiciary restrains the other departments of the government
and this result is one of the necessary corollaries of the
"system of checks and balances" of the government
established.
No es que con esto el poder judicial assume un complejode superioridad
sobre los otros poderes del Estado, no. Setrate simplemente de que,
dentro de las limitaciones de todacreacion humana, alguien tiene que
arbitrar y dirimir losconflictos y las transgresiones a gue puede dar lugar
la Constitucion, y se estima que el poder judicial, pro la razonde su ser y
de sus funciones, es el mas llamado a ser esearbitro. Se trate de una
propia y graciosa inhibicion delos otros poderes en virtud de una
necesidad impuesta porunas teorias y practicas de gobiernio que han
resistido la prueba del tiempo y el choque con la realidad y la
experiencia. En mi disidencia en el asunto de Vera contraAvelino (77
Phil., 192), hablando sobre este particular dijelo siguiente y lo reitero
ahora, a saber:
En parte, el argumento expuesto es correcto y acertado. No
sepuede discutir que los tres poderes del Estado son iguales e
independientesentre si; que ninguno de ellos es superior al
otro, mucho menos el poder judicial que entre los tres es el
menos fuerte y elmas precario en medios e implementos
materiales. Tampoco se puede discutir que bajo la
Constitucion cada poder tiene una zona, una esferade accion
propia y privativa, ydentro de esa esfera un cumulode
facultades que le pertenecen exclusivamente; que dentro de
esaesfera y en el uso de esas facultades cada poder tiene
absoluta discreciony ningun otro poder puede controlar o
revisar sus actos so pretexto de que alguien los cuestiona o
tacha de arbitrarios, injustos, imprudentes o insensatos. Pero
la insularidad, la separacion llegasolo hasta aqui. Desde
Montesquieu que lo proclamo cientificamente hasta nuestros
dias, el principio de la separacion de poderes hasufrido
tremendos modificaciones y limitaciones. El consenso doctrinal
hoy es que la teoria es solo relativa y que la separacionde
poderes queda condicionada por una mecanica constitucional
— lamecanica de los frenos y cortapisas. (Willoughby, On the
Constitution of the United States, tomo 3, pags. 1619, 1620,
2.ª edicion.) Como queda dicho, cada poder es
absoluto dentro de la esfera quele asigna la Constitucion; alli
el juego de sus facultades y funcionesno se puede coartar.
Pero cuando se sale y extravasa de esa esferainvadiendo
otras esferas constitucionales, ejerciendo facultades queno le
pertenecen, la teoria de la separacion ya no le ampara, la
Constitucion que es superior a el le sale al encuentro, le
restringe uy leachica dentro de sus fronteras, impidiendo sus
incursiones anti-constitucionales. La cuestion ahora a
determinar es si bajo nuestrosistema de gobierno hay un
mecanismo que permite restablecer eljuego normal de la
Constitucion cuando surgen estos desbarajustes, estos
conflictos que podriamos llamar de fronteras constitucionales;
 tambien es cuestion a determinar si cuando surgen esos
conflictos, un ciudadano sale perjudicado en sus derechos, el
mismo tiene algun remedio expedito y adecuado bajo la
Constitucion y las leyes, y quien puede concederle ese
remedio. Y con esto llegamos a la cuestion basica, cardinal en
este asunto.
Nuestra opinion es que ese mecanismo y ese remedio existen
— son los tribunales de justicia.
La mayoria no define en su decision lo que llama cuestion politica no-
justiciable ni las maaterials o casos que caen dentro de su significado.
"The difficulty lies" — dice la ponencia — "in determining what matters
fall within the meaning of political question. The term is not susceptible of
exact definition, and precedents and authorities are not always in full
harmony as to the scope of the restrictions, on this ground, on the courts
to meddle with the actions of the political departments of the
government." Pero razonando por analogia cita un precedente, una
autoridad — el caso de Coleman vs. Miller decidido no hace muchos
años por la Corte Suprema Federal de los Estados Unidos. La mayoria
cree que este es el caso mas semejante al que nos ocupa. Creo que la
mayoria padece error: el caso de Coleman contra Miller es precisamente
un buen argumento en favor del recurso.
Compendiado el caso es como sigue: En Junio, 1924, el Congreso de
los Estados Unidos propuso una reforma ala Constitucion, conocida por
"Child Labor Amendment" (enmienda sobre el trabajo infantil). En Enero,
1925, la Legislatura del Estado de Kansas adopto una resolucion
rechazandola enmienda y una copia certificada de la resolucionse envio
al Secretario de Estado de los Estados Unidos. En Enero, 1937, o sea
12 años despues, una resolucion conocida como "Resolucion
Concurrente del Senado No. 3" se presento en el Senado del Estado de
Kansas pararatificar la propuesta enmienda. Habia 40 Senadores.
Alconsiderarse la resolucion 20 Senadores votaron en favor y 20
Senadores en contra. El Teniente Gobernador, que era entonces el
Presidente del Senado en virtud de la Constitucion estatal, emitio su voto
en favor de la resolucion, rompiendo asi el empate. La resolucion fue
posteriormente adoptada por la Camara de Representantes de Kandas
mediante una mayoria de los votos de sus miembros.
Fued entonces cuando se interpuso ante la Corte Suprema de Kansas
un recurso de mandamus por los 20 Senadores adversos a la resolucion
y por otros 3 miembros de la Camarade Representantes. El objeto del
recurso era (a) compeler al Secretario del Senado a borrar el endoso
favorable de la resolucion y poner en su lugar las palabras "no ha sido
aprobada"; (b) recabar la expedicion de un interdicto contra los oficiales
del Senado y Camara de Representantes prohibiendo les que firmaran la
resolucion y contra el Secretario de Estado de Kansad prohibiendole que
autentic aradicha resolucion y la entregara la Gobernador. La solicitud
cuestionaba el derecho del Teniente Gobernadora emitir su voto decisivo
en el Senado. Tambien se planteabaen la solicitud el hecho de que la
resolucion habiasido rechazada originariamente y se alegaba, ademas,
quedurante el periodo de tiempo comprendido entre Junio,1924, y Mayo,
1927, la enmienda habia sido rechazada porambas Camaras de las
Legislaturas de 26 Estados y solose habia ratificado en 5 Estados, y que
por razon de dicho rechazamiento y por no haberse ratificado dentro de
untiempo razonable la enmienda habia perdido su validez y vitalidad.
La Corte Suprema de Kansas hallo que no habia ninguna disputa sobre
los hechos, asumio competencia sobre el casoy sostuvo que el Teniente
Gobernador tenia derecho a emitirvoto decisivo, que la proyectada
enmienda conservabasu vitalidad original a pesar del tiempo
transcurrido, y quela resolucion, "habiendo sido aprobada por la Camara
de Representantes y por el Senado, el acto de ratificacion dela
propuesta enmienda por la Legislatura de Kansas erafinal y complete."
Consiguientemente el recurso de mandamus fue denegado.
Elevado el asunto en casacion para ante la Corte Suprema Federal, esta
asumio jurisdiccion sobre el caso, conla concurrencia y disidencia de
algunos Magistrados que opinaban que el recurso debia rechazarse de
plano, sin masceremonias, por la razon, segun los disidentes, de que los
recurrentes no tenian personalidad ni derecho de accion para pedir la
revision de la sentencia de la Corte Supremade Kansas, y porque
ademas se trataba de una cuestion puramente politica, por tanto no-
justiciable. Bajo la ponenciade su Presidente el Sr. Hughes, la Corte
Suprema Federal conocio del caso a fondo, discutiendo y resolviendo las
cuestiones planteadas. He aqui sus palabras: "Our authority to issue the
writ of certiorari is challenged upon the ground that the petitioners have
no standing to seek to have the judgment of the state court reviewed and
hence itis urged that the writ of certiorarishould be dismissed.We are
unable to accept that view." Esto viene a ser comouna replica a las
siguientes palabras de los disidentes: "It is the view of Mr. Justice
Roberts, Mr. Justice Black, Mr. Justice Douglas and myself (Mr. Justice
Frankfurter) that the petitioners have no standing in the Court." Delo
dicho resulta evidente que la Corte Federal no adoptola actitud de
"manos fuera" (hands off), sino que actuo positivamente sobre el caso,
encarandolo.
La decision consta de tres partes. La primera parte, que es bastante
extensa, esta consagrada enteramente adiscutir la cuestion de la
jurisdiccion de la Corte. Ya hemosvisto que esta cuestion se ha resuelto
enteramente enfavor de la jurisdiction, en virtud de las razones
luminosas que alli se explanan y que no reproduzco por no ser necesario
y para no alargar indebidamente esta disidencia. La segunda parte es
bien breve, apenas consta de dos parrafos. Se refiere a la cuestion de si
el voto del Teniente Gobernador, que rompio el empate, era o no valido.
La Corte nolo resuelve, por que dice que sus miembros se dividieron
porigual sobre si era una cuestion politica y, por tanto, nojusticiable. La
tercera parte, tan extensa como la primera, esta dedicada a estudiar y
discutir las siguientes proposiciones :(a) Si habiendo sido rechazada
originariamentela enmienda, una ratificacion posterior podia validamente
dejar sin efecto dicho rechazamiento y tomarse como unaratificacion
legal al tenor de la Constitucion; (b) si ellargo tiempo transcurrido entre el
rechazamiento y la ratificacion — unos 13 años — no habia tenido el
efecto de darcaracter final a la repudiacion de la enmienda, causando
estado juridico definitivo.
El analisis que hace el ilustrado ponente de las cuestiones planteadas es
muy interesante y desde luego acabado. Se estudian y comentan
luminos amente los precedentes. Sobre la cuestion de si el
rechazamiento de unaenmienda propuesta impide que la misma sea
ratificada posteriormente, se puntualiza lo siguiente: que el articulo V de
la Constitucion Federal sobre enmienda esta fraseadoen terminos
positivos, es decir, habla de ratificacion y node rechazamiento, y que por
tanto "el poder para ratificarlo confiera al Estado la Constitucion, y que,
como poder ratificante, continua y persiste, a pesar de un previo
rechazamiento. "Luego la Corte dice, examinando los precedentes, que
el Congreso, en el ejercicio de su control sobrela promulgacion de las
enmiendas a la Constitucion, ha resuelto esta cuestion repetidas veces
en el sentido indicado, esto es, considerando inefectivo el previo
rechazamientofrente a una positiva ratificacion; y la Corte concluye que
esta accion del Congreso es valida, constitucional; por consiguiente, los
tribunales no estan autorizados para revisarla. Es en este sentido, creo
yo, como la Corte dice que se trate de una cuestion politica no-
justiciable, es decir una cuestion que cae dentro de la zona
constitucional exclusion del Congreso; por tanto, se trate deuna accion
valida, constitucional. Pero no hay nada enesa decision que diga, o
permita inferir, que cuando el Congreso viola un mandato expreso de la
Constitucion, como en el caso que nos ocupa, los tribunales no pueden
intervenir, bajo el principio de la supremacia judicial entratandose de
interpretar la Constitucion, para resolver el conflicto o enjuiciar la
transgresion, y conceder el remedio propiamente pedido. En otras
palabras, en el caso de Coleman contra Miller la Corte Suprema Federal
hallo que el Congreso, al declarar valida la ratificacion de la enmienda
constitucional sobre trabajo infantil (Child labor), no habia infringibo el
articulo V de la Constitucion, sobre enmiendas, y la Corte lo razona
diciendo, con la vista delos precedentes, que el referido articulo V habla
de ratificacion y no de rechazamiento, y que, por tanto, "el poderpara
ratificar continua y persiste a pesar de un previo rechazamiento." De
suerte que, en realidad de verdad, no escierto que la Corte Suprema
Federal declaro injusticiablela materia, pues ¿que mejor prueba de
justiciabilidad que ese dictum categorico, positivo y terminante?
Sobre la proposicion de si el largo tiempo transcurrido entre el
rechazamiento y la ratificacion — unos 136 años — no habia tenido el
efecto de dar caracter final a la repudiacion de la enmienda, causando
estado juridico definitivo, la Corte Suprema Federal fallo que no, es
decir, declarovalida la ratificacion no obstante dicho lapso de tiempo,
aduciendo razones muy atinadas, entre ellas la de que las condiciones
de caracter moral, medico, social y economico que aconsejaban la
prohibicion del trabajo infantil en las fabricas eran tan validas y
existentes, si no mas, cuandose sometio la enmienda por primera vez
para su ratificacion como 13 años despues. Y luego la Corte cita
autoridades y precedentes en apoyo de su conclusion, entre ellosel caso
tipico y decisivo de Dillon vs. Glass (256 U.S., 368; 65 Law.ed., 994; 41
Sup.Ct., 510). En este caso la Cortedeclaro que el Congreso, al
proponer una enmienda a la Constitucion, pueded fijar un tiempo
razonable para su ratificacion, y sostuvo la accion del Congreso al
disponer enla proyectada 18.ª Enmienda que la misma seria ineficaza
menos que se ratificase dentro de siete años.
Ahora bien, en el caso de Coleman contra Miller ocurre todo lo contrario:
el Congreso no habia fijado ningun plazopara la ratificacion. En vista de
esto, los recurrentes pretendian que la Corte supliera la omision del
Congreso declarandolo que era tiempo razonable, teniendo en cuentalos
precedentes judiciales y el precedente congresional de 7 años ya
sostenido en el caso citado de Dillon contra Glass; y que desde luego el
periodo de 13 años era demasiado largo para ser razonable. La Corte
Suprema dijo que no, queno eran los tribunales los que debian fijar ese
tiempo razonable; que en esta cuestion entraban muchos factores
denaturaleza varia y compleja — politicos, economicos y sociales — que
solo el Congreso estaba en condiciones de determinar ya mediante la
correspondiente legislacion como enel caso de la 18.ª Enmienda, ya en
cada caso concreto deratificacion al ejercer su control sobre la
promulgacion de las enmiendas. Ahora bien, pregunto: ¿no es esto
un dictum judicial? ¿no es esto justiciar? ¿no esta aqui la Corte
Suprema Federal sentandose en estrados y emitiendo judicialmente su
opinion sobre una materia juridica y constitucional sometida a su
consideracion? En realidad, puede decirse que la unica cuestion que la
Corte ha dejado de resolver es la validez o nulidad del voto decisivo del
Teniente Gobernador, por la razon de que sobre este punto, segun se
dice en la misma decision, la opinion del Tribunal estaba igualmente
dividida. Todas las demas cuestiones han sido enjuiciadas, resueltes, y
esta accion dela mayoria, asumiendo plena jurisdiccion sobre el caso y
las materias en el discutidas, es lo que ha motivado la disidencia de 4
Magistrados los Sres. Black, Roberts, Frankfurter y Douglas. En efecto,
estos disidentes no disimulansu desagrado al ver que la Corte asume en
el caso, siquier implicitamente, el poder de interpretacion judicial, y
aunvan mas alla — expresan un notorio desencanto al ver que la Corte
"trata el proceso enmendatorio provisto por la Constitucion, como sujeto
a interpretacion judicial en algunos respectos, y en otros sujeto a la
autoridad final del Congreso", y al ver tambien que en la decision "no hay
desaprobacion de la conclusion establecida en el asunto de
Dillon contraGlass, de que la Constitucion requiere tacitamente que una
enmienda propiamente sometida debe darsepor muerta, a menos que se
ratifique dentro de un tiempo razonable." Es decir, los Magistrados
disidentes esperaban que la Corte revocase y abrogase lo hecho por ella
en elcitado asunto de Dillo contra Glass en donde la Corte, envez de
abstenerse de conocer del caso por tratarse en el, segun los disidentes,
de materia politica no-justiciable, ejercio plena jurisdiccion sobre el
mismo asumiendo supoder tradicional de interpretar la Constitucion y
declarando valida la lay del Congreso que fijaba un plazo de7 años para
la ratificacion de la 18.ª Enmienda. No puedo resistir a la tentacion de
reproducir las mismas palabrasde la disidencia: ellas, mejor que todo lo
que yo pueda decir, demuestran de modo inconcuso las irreconciliables
diferencias de criterio entre la mayoria, representada porel ilustre
ponente Sr. Hughes, y los disidentes, pues mientraspor un lado el
ponente justicia decididamente el caso considerando, discutiendo y
resolviendo todas las cuestionesplanteadas, menos la cuestion del voto
del Teniente Gobernador, citando profusamente autoridades y
precedentes, los disidentes, en su opinion, preconizan una actitudde
absoluta abstencion, de "manos fuera" (hands off), portratarse, segun
ellos, de una materia politica no-justiciable que cae exclusivamente bajo
el control del Congreso. He aqui las palabras de los disidentes:
. . . To the extent that the Court's opinion in the present case
even impliedly assumes a power to make judicial interpretation
of the exclusive constitutional authority of Congress over
submission and ratification of amendments, we are unable
to agree.
The State court below assumed jurisdiction to determine
whether the proper procedure is being followed between
submission and final adoption. However, it is apparent that
judicial review of or pronouncements upon a supposed
limitation of a "reasonable time" within which Congress may
accept ratification; as to whether duly authorized State officials
have proceeded properly in ratifying or voting for ratification; or
whether a State may reverse its action once taken upon a
proposed amendment; and kindred questions, are all
consistent only with an ultimate control over the amending
process in the courts. And this must inevitably embarrass the
course of amendment by subjecting to judicial
interference matters that we believe were intrusted by the
Constitution solely to the political branch of government.
The Court here treats the amending process of the Constitution
in some respects as subject to judicial construction, in others
as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Dillon vs. Glass, that
the Constitution impliedly requires that a property submitted
amendment must die unless ratified within a "reasonable
time." Nor does the Court now disapprove its prior assumption
of power to make such a pronouncement. And it is not made
clear that only Congress has constitutional power to determine
if there is any such implication in article 5 of the Constitution.
On the other hand, the Court's opinion declares that Congress
has the exclusive power to decide the political questions of
whether a State whose legislature has once acted upon a
proposed amendment may subsequently reverse its position,
and whether in the circumstances of such a case as this, an
amendment is dead because an "unreasonable" time has
elapsed. No such division between the political and judicial
branches of the government is made by article 5 which grants
power over the amending of the Constitution to Congress
alone. Undivided control of that process has been given by the
article exclusively and completely to Congress. The process
itself is "political" in its entirety, from submission until an
amendment becomes part of the Constitution and is not
subject to judicial guidance, control or interference at any point.
Since Congress has sole and complete control over the
amending process, subject to no judicial review, the views of
any court upon this process cannot be binding upon Congress,
and in so far as Dillon vs. Glass attempts judicially to imposed
a limitation upon the right of Congress to determine final
adoption of an amendment, it should be disapproved. . . .
(Coleman vs. Miller, 122 A.L.R., 695, 708, 709.)
La distribucion de los votos con relacion a las cuestiones planteadas en
el referido asundo de Coleman vs. Miller esalgun tanto confusa, como
han podido notar los mismos comentaristas; asi que necesita de alguna
explicacion. Escierto que no suscriben la ponencia mas que 3
Magistrados, a saber: el ponente Sr. Hughes y los Sres. Stone y Reed,
pero en cuanto a la jurisdiccion plena que la Corte asumio sobre el caso
y la materia hay que añadir los votos de los Sres. McReynolds y Butler.
Estos dos ultimos no soloconcurrian implicitamente en la accion de la
Corte al enjuiciarel caso, sino que inclusive opinaban que debia
concederse el recurso, esto es, que debia anularse la ratificacion tardia
de la Enmienda sobre Trabajo Infantil (Child Labor) hecha por la
Legislatura de Kansas. De modo queen cuanto al "issue" de
la jurisdiccion, la justiciabilidad del caso, la votacion era de 5 contra 4 —
por la jurisdiccion,la justiciabilidad, el ponente Sr. Hughes, y los
Magistrados Sres. Stone, Reed, McReynolds y Butler; por la actitud de
absoluta abstencion, de "manos fuera" (hands off), los Magistrados Sres.
Black, Frankfurter, Roberts y Douglas.
Repito lo dicho mas arriba: el caso de Coleman vs. Miller, en vez de ser
una autoridad a favor de los recurridos, juntamente con el caso de
Dillon vs. Glass constituyen precedentes decisivos en la jurisprudencia
federal americana a favor de los recurrentes.
V
Pero si la jurisprudencia federal milita en favor de latesis de que tenemos
jurisdiccion para enjuiciar y decidirel presente caso, en el ejercicio de
nuestras supremas funciones como interprete de la Constitucion bajo el
principio firmemente establecido de la supremacia judicial en asuntos
propiamente planteados sobre conflictos y transgresiones
constitucionales, la jurisprudencia de los Estados estodavia mas
indubitable e inequivoca, mas terminante y decisiva. La importancia de
esto sube de punto si se tieneen cuenta que, mas que con el gobierno
federal, nuestra analogia, nuestros puntos de contacto en lo politico,
constitucional y juridico es mas bien con los diferentes Estados de la
Union americana. Nuestro sistema de gobierna es unitario. Aqui nuestras
provincias no son Estados autonomos y semi-independientes como lo
son los Estados americanos. Asi que la cedula, la unidad politica mas
semejante a la nuestra no es la federal, sino la estatal. Por eso si bienes
cierto que las constituciones de los Estados, como lanuestra, todas
estan fundamentalmente calcadas en el patron de la Constitucion
federal, se vera que en ciertosrasgos caracteristicos del sistema unitario
nuestra Constitucionse aproxima evidentemente mas a las de los
Estados que a la federal. Esa semejanza es sobre todo notabilisimaen la
parte que se refiere al proceso enmendatorio de la Constitucion. Es que,
en realidad, los Estados de la Union americana, para todos los efectos
de la vida interior, domestica, son practicamente naciones
independientes; asi que nuestra evolucion, nuestro transitode la
condicion de Commonwealth a la de Republicas oberana e
independiente si bien nos distingue de ellos enel derecho internacional,
ninguna diferencia, sin embargo, ha operado en el campo constitucional,
ora en la parte dogmatica de la Constitucion, ora en la parte organica. Y
la mejor prueba de esto es que con la independencia nohemos tenido
necesidad de cambiar de Constitucion: lamisma que nos servia cuando
eramos simple Commonwealth, es decir, cuando estabamos sujetos a la
soberania americana, es la misma que nos sirve hoy cuando ya somos
Republic; y no cabe duda de que nos serviria perfectamente bien si no la
tuvieramos asendereada y malparada en nuestras pecaadoras manos
con repetidas violaciones, confrecuentes asaltos contra su
integridad . . ..
Ahora bien; sin petulancia se puede retar a cualquieraa que señale un
caso, un solo caso en la jurisprudencia de los Estados de la Union
americana en que los tribunales de justicia se hayan negado a conocer y
enjuiciaruna violacion constitucional semejante a la que nos ocupapor la
razon de que se trataba de una cuestion politica no-justiciable. No hay
absolutamente ninguno; por esoque los recurridos, a pesar de las
pacientes y laboriosas investigaciones que denota su habil y
concienzudo alegato, no han podido citar ni un solo caso.
En cambio, los tomos de jurisprudencia de various Estados dan cuenta
de casos indenticosd al que nos ocupa y entodos ellos se ha declarado
invariablemente que la violacion de la Constitucion en lo que se refiere al
precepto que regula el proceso de la enmiendas a la Ley organica esuna
cuestion judicial, y ninguna Corte Suprema de Estados e ha lavado
jamas las manos bajo la teoria de la separacion de poderes. Es mas:
creo que in siquiera seha planteado seriamente la objecion fundada en el
argumentod e la injusticiabilidad.
Para no alargar demasiado esta disidencia no voy a citarmas que
algunos casos los mas conocidos y representativos, tomados de la
jurisprudencia de algunos Estados, a saber: Florida, Minnesota, Georgia
e Indiana. De la Corte Suprema de Florida tenemos dos casos: el de
Crawford vs .Gilchrist y el de Gray vs. Childs.
En el asunto de Crawford vs. Gilchrist (64 Fla., 41; 59 So., 963l Ann.
Cas., 1914B, 916), se trataba de una accionde prohibicion interpuesta
por el Gobernador del Estado, Albert W. Gilchrist, contra el Secretario de
Estado, H. Clay Crawford, para impedir que cierta propuesta enmiendaa
la Constitucion se publicara y se sometiera al electorado en un plebiscito
para su ratificacion o rechazamiento. Esdecir, lo mismo de que se trate
en el case que tenemos antenosotros. La enmienda habia sido aprobada
por la Camarade Representantes de Florida con el voto necesario y
constitucional de tres quintas (3/5), y fue enviada al Senado para su
concurrencia. El Senado tambien la aprobo conel voto de tres quintos,
pero esta votacion fue reconsiderada posteriormente. Asi estaba el
asunto, pendiente de reconsideracion cuando se clausuro la Legislatura.
Despues, sin embargo, diose por aprobada la propuesta enmienday el
Secretario de Estado trato de dar los pasos parasu publicacion y
ratificacion plebiscitaria. De ahi la accionde interdicto prohibitorio,
fundada en la alegacion de quela enmienda no habia sido aprobada
debidamente por la Legislatura de acuerdo con los metodos prescritos
en la Constitucion de Florida. Igual que en el presente casetambien hubo
alli una batalla forense colosal, con untremendo despliegue de habilidad
y talento por cada lado. El ponente no se recata en alabar el esfuerzo de
las partesy dice: ". . . we think the parties to this litigationare to be
commended, both for taking the proceedings that have brought these
unsual questions before the court for determination and for the great
ability with which their counsel have presented them to this court."
¿Se lavo las manos la Corte Suprema de Florida declarandose
incompetente para conocer del asunto por la razonde que se trataba de
una cuestion politica y, por tanto, nojusticiable? De ninguna manera. La
Corte asumio resueltamente su responsabilidad y poder tradicional de
interpretarla Constitucion y fallo el asunto en su fondo, declarando que la
cuestion era propiamente judicial y que laenmienda constitucional
propuesta no se habia aprobada deconformidad con los requisitos
establecidos por la Constitucionpara el proceso y tramitacion de la
enmiendas. Por tanto, se denego la peticion
de supersedeas interpuestapor el recurrido para enervar el recurso; es
decir, al recurrentegano su inusitado e historico pleito. Y las esferas
politicas de Florida no se desorbitaron por esta decisivaderrota de la
teoria de la separacion de poderes. Vale la pena reproducir algunar de
las doctrinas sentadas en elasunto, a saber:
Constitutional Law — Power of Courts to Determine Validity of
Action by Legislature in Proposing Constitutional Amendment.
A determination of whether an amendment to the constitution
has been validly proposed and agreed to by the Legislature is
to be had in a judicial forum where the constitution provides no
other means for such determination.
Injunction — Subject of Relief — Act of Secretary of State in
Certifying Proposed Amendments.
The act of the secretary of state in publishing and certifying to
the country commissioners proposed amendments to the
constitution is in its nature ministerial, involving the exercise of
no discretion, and if the act is illegal it may be enjoined in
appropriate proceedings by proper parties, there being no
other adequate remedy afforded by law.
Injunction — Governor as Complainant, Secretary of State as
Defendant.
The governor of the state, suing as such, and also as a citizen,
taxpayer, and elector, is a proper complainant in proceedings
brought to enjoin the secretary of state from publishing at
public expense and certifying proposed amendments to the
constitution upon the ground that such proposed amendments
are invalid because they have not been duly "agreed to by
three-fifths of all the members elected to each house" of the
legislature.
Amendments to Constitution — Effect of Ignoring Mandatory
Provisions of Constitution.
If essential mandatory provisions of the organic law are
ignored in amending the constitution, it violates the right of all
the people of the state to government regulated by law.
Duty of Court to Enforce Constitution.
It is the duty of the courts in authorized proceedings to give
effect to the existing constitution.
Mandatory Provisions of Constitutions as to Manner of
Amending Constitution.
The provision of the organic law requiring proposed
amendments of the constitution to "be agreed to by three-fifths
of all the members elected to each house" of the legislature is
mandatory, and it clearly contemplates that such amendments
shall be agreed to by the deliberate, final, affirmative vote of
the requisite number of the numbers of each house at a regular
session.
Construction of Constitution to Give Intended Effect —
Mandatory Character of Provisions.
Every word of a state constitution should be given its intended
meaning and effect, and essential provisions of a constitution
are to be regarded as being mandatory. (Crawford vs. Gilchrist,
Ann. Cas., 1914 B, pp. 916, 917.)
El asunto de Crawford vs. Gilchrist se decidio en 1912. Enm 1934 otro
asunto constitucional importante, el de Graycontra Childs, se decidio en
virtud de la autoridad y sentencia dictada en dicho asunto de Crawford.
En el caso citado de Gray contra Childs (156 So. Rep., 274; Fla.),
tambien se trataba de una demanda de prohibicion para impedir la
publicacion de una propuesta enmienda constitucional que iba a ser
sometida al electorado de Florida para su ratificacion o rechazamiento
en una eleccion general o plebiscito fijado para Noviembre, 1934. La
enmienda habia sido aprobada por la Camara de Representantes con el
voto de tres quintos (3/5), pero en el Senado hubo cierta confusion
acerca del texto finalmente aprobado. La Legislatura, antes de
clausurarse aprobo unafs resolucion conjunta autotizando a ciertos
oficiales de las Camaras para que despues de la clausura hiciesen
ciertas correciones enlas actas y en el diario de sesiones a fin de formar
la verdaderahistoria de los procedimientos y compulsar el textode la
enmienda tal como habia sido aprobada. Se alegabaen la demanda que
esto era ilegal y anticonstitucional. Eltribunal de circuito estimo el recurso
de prohibicion. Elevado el asunto en apelacion para ante la Corte
Suprema del Estado, la misma confirmo la sentencia apelada
concediendo el interdicto prohibitorio. Hed aqui los pronunciamientos de
la Corte que parecen estereotipados para el caso que nos ocupa, a
saber:
(4,5) Section 1 of article 17 of our Constitution provides the
method by which the Constitution may be amended. It requires
that a proposed amendment shall be entered upon the
respective Journals of the House of Representatives and of the
Senate with the yeas and nays showing a three-fifths vote in
favor of such amendment by each House. The proposed
amendment here under consideration nowhere appears upon
the Journals of the Senate, and therefore it is unnecessary for
us to consider any other questions presented or any authorities
cited.
The amendment of the organic law of the state or nation is not
a thing to be lightly undertaken not to be accomplished in a
haphazard manner. It is a serious thing. When an amendment
is adopted, it becomes a part of the fundamental law of the
land, and it may mean the weal or woe of the future
generations of the state wherein it becomes a part of the
fundamental law. We cannot say that the strict requirements
pertaining to amendments may be waived in favor of a good
amendment and invoked as against a bad amendment. If the
Constitution may be amended in one respect without the
amendment being spread upon the Journals of one of the
respective House of the Legislature, then it may be ameqnded
in any other respect in the same manner. It is not for the courts
to determine what is a wise proposed amendment or what is
an unwise one. With the wisdom of the policy the courts have
nothing to do. But it is the duty of the courts, when called upon
so to do, to determine whether or not the procedure attempted
to be adopted is that which is required by the terms of the
organic law.
Finding that the organic law has not been complied with, as
above pointed out, the decree appealed from should be, and
the same is hereby, affirmed on authority of the opinion and
judgment in the case of Crawfordvs. Gilchrist, 64 Fla., 41; 59
So., 953; Ann. Cas., 1914B, 9156. (Gray vs. Childs, 156
Southern Reporter, pp. 274, 279.)
Note se que la clausula sobre enmiendas en la Constitucion de Florida
es semejante a la nuestra, a saber: (1) la propuesta enmienda tiene que
ser aprobada por la Legislatura, en Florida con el voto de tres quintos
(3/5) de los miembros, en Filipinas con el voto de tres cuartos (3/4); (2)
los sies y los nos tienen que hacersesd constar en el diario de sesiones
(Articulo VI, seccion 10, inciso 4; seccion 20, inciso 1, Constitucion de
Filipinas); (3) despues de aprobada la enmienda por la Legislatura se
somete al electorado en una eleccion o plebiscito, para su ratificacion
orechazamiento.
El procedimiento sobre enmiendas prescrito en la Constitucion federal
americana es diferente, a saber: el Congreso puede proponer la
enmienda bien (1) mediante la aprobacion de dos tercios (2/3) de sus
miembros; bien (2) mediante una convencion que se convocara al efecto
apeticion de las Legislaturas de dos tercios (2/3) de los diferentes
Estados. En cualquiera de ambos casos la enmiendasera valida para
todos los efectos y fines comoparte de la Constitucion siempre que fuera
ratificada porlas Legislaturas de tres cuartos (3/4) de los Estados, o
porconvenciones de tres cuartas-partes de los mismos, segun que uno u
otro modo de ratificacion hubiera sido propuestopor el Congreso.
Esta diferencia de procedimientos es la que, segun digomas arriba, me
inclina a sostener que la jurisprudencia constitucional propiamente
aplicable a Filipinas es la jurisprudencia de los Estados, puesto que es
con estos con los cuales tenemos analogia o paridad constitucional en lo
que toca a la forma y manera como se puede reformar la Constitucion.
Seguire ahora citando mas casos.
Tenemos un caso de Minnesota, identico a los ya citados de Florida. En
el asunto de In re McConaughy (106 Minn., 392; 119 N.W., 408), tambin
se suscito la cuestion de si una propuesta enmienda constitucional habia
sido aprobada de acuerdo con los requisitos señalados en la
Constitucion de Minnesota. Alli como aqui tambien hubo disputa sobre si
esto era una cuestion judicial o una cuestion politica no justiciable. La
Corte Suprema deaquel Estado declaro sin ambajes que era
una cuestion judicial. He aqui sus palabras que no tienen desperdicio:
The authorities are thus practically uniform in holding that
whether a constitutional amendment has been properly
adopted according to the requirements of an existing
constitution is a judicial question. There can be little doubt that
the consensus of judicial opinion is to the effect that it is the
absolute duty of the judiciary to determine whether the
constitution has been amended in the manner required by the
constitution, unless a special tribunal has been created to
determine the question; and even then many of the courts hold
that the tribunal cannot be permitted to illegally amend the
organic law. There is some authority for the view that when the
constitution itself creates a special tribunal, and confides to it
the exclusive power to canvass votes and declare the results,
and makes the amendment a part of the constitution as a result
of such declaration by proclamation or otherwise, the action of
such tribunal is final and conclusive. It may be conceded that
this is true when it clearly appears that such was the intention
of the people when they adopted the constitution. The right to
provide a special tribunal is not open to question; but it is very
certain that the people of Minnesota have not done so, and this
fact alone eliminates such cases as Worman vs. Hagan, 78
Md., 152; 27 Atl., 616; 21 L. R. A., 716, and Miles vs. Badford,
22 Md., 170; 85 Am. Dec., 643, as authorities against the
jurisdiction of the courts. (In re McConaughy, 106 Minn., 392;
119 N. W., 408.)
Tambien tenemos un caso de Georgia. En el asunto de
Hammond vs. Clark (136 Ga., 313; 71 S.E., 479; 38 L.R.A.[N.S.], 77), se
suscito igualmente una disputa sobre siuna enmienda habia sido
aprobada de acuerdo con los requisitos de la Constitucion era una
cuestion judicial o no. La Corte Suprema de aquel Estado declaro
afirmativamente. He aqui su inequivoca pronunciamiento:
Counsel for plaintiff in error contended that the proclamation of
the governor declaring that the amendment was adopted was
conclusive, and that the courts could not inquire into the
question. To this contention we cannot assent. The constitution
is the supreme state law. It provides how it may be amended. It
makes no provision for exclusive determination by the
governor as to whether an amendment has been made in the
constitutional method, and for the issuance by him of a binding
proclamation to that effect. Such a proclamation may be both
useful and proper, in order to inform the people whether or not
a change has been made in the fundamental law; but the
constitution did not make it conclusive on that subject. When
the constitution was submitted for ratification as a whole, a
provision was made for a proclamation of the result by the
governor. Const. art. 13, section 2, par. 2 (Civ. Code 1910,
section 6613). But in reference to amendment there is no such
provision. Const. article 13, section 1, par. 1 (Civ. Code 1910,
section 6610). In the absence of some other exclusive method
of determination provided by the constitution, the weight of
 authority is to the effect that whether an amendment has been
properly adopted according to the requirements of the existing
constitution is a judicial question. (Hammond vs. Clark, 136
Ga., 313; 71 S.E., 479;38 L.R.A. [N.S.], 77.)
Tambien tenemos el siguiente case de Indiana:
(1) In the beginning we are confronted with the contention on
the part of appellees that this court has no jurisdiction to
determine the questions in issue here. In the case of
Ellingham vs. Dye, 178 Ind., 336, 391; 99 N.E., 1, 21 (Ann.
Cas. 1915C, 200), this court, after reviewing many decisions
as to the power of the courts to determine similar questions,
sums up the whole matter as follows:
"Whether legislative action is void for want of power in that
body, or because the constitutional forms of conditions have
not been followed or have been violated (emphasis supplied)
may become a judicial question, and upon the courts the
inevasible duty to determine it falls. And so the power resides
in the courts, and they have, with practical uniformity,
exercised the authority to determine the validity of the
proposal, submission, or ratification of change in the organic
law. Such is the rule in this state" — citing more than 40
decisions of this and other states.
(2) Appellees further contend that appellant has not made out
a case entitling him to equitable relief. The trial court found that
the officers of the state, who were instructed with the execution
of the law, were about to expend more than $500,000 under
the law, in carrying out its provisions; indeed, it was suggested,
in the course of the oral argument, that the necessary
expenditures would amount to more than $2,000,000. This
court, in the case of Ellingham vs. Dye, supra, involving the
submission to the people of the Constitution prepared by the
Legislature, answered this same question contrary to the
contention of appellees. See pages 413 and 414 of that
opinion. (186 Ind., 533; Bennett vs. Jackson, North Eastern
Reporter, Vol. 116, pp. 921, 922.)
Creo que la posicion de la jurisprudencia americana tanto federal como
de Estado sobre este punto, esto es, cuandoes judicial la cuestion y
cuando no lo es, se halla bien definida en el tomo 12 del Corpus Juris,
en la parte que llevael encabezamiento de "Constitutional Law" y bajo el
subepigrafe que dice: "Adoption of Constitution and Amendments" (12
Corpus Juris, 880, 881). Es un compendiocuidados amente elaborado en
que se da un extracto de la doctrina con las citas sobre autoridades al
pie. Reproducire el compendio, pero omitiendo las citas para no alargar
demasiado esta disidencia: el que desee comprobarlas no tienemas que
consultar el tomo. En realidad, leyendo este extracto se ve que parece
un resumen del extenso analisis que llevo hecho sobre la doctrina tanto
federal como estatal. Su meollo es, a saber: la cuestion de si o no una
nueva constitucion se ha adoptado la tienen que decidir los
departamentos politicos del gobierno; pero la cuestion de si una
enmienda a una constitucion existente ha sido debidamente propuesta,
adoptada y ratificada de acuerdo con los requisitos provistos por la
Constitucion, para que vengaa ser parte de la misma, es una cuestion
que los tribunales de justicia tienen que determinar y resolver, excepto
cuandola materia ha sido referida por la Constitucion a un tribunale
special con poder para llegar una conclusion final. He aqui el sinopsis:
SEC. 382. b. Adoption of Constitution and Amendments. —
Whether or not a new constitution has been adopted is a
question to be decided by the political departments of the
government. But whether an amendment to the existing
constitution has been duly proposed, adopted, and ratified in
the manner required by the constitution, as as to become part
thereof, is a question for the courts to determine, except where
the matter has been committed by the constitution to a special
tribunal with power to make a conclusive determination, as
where the governor is vested with the sole right and duty of
ascertaining and declaring the result, in which case the courts
have no jurisdiction to revise his decision. But it must be made
clearly to appear that the constitution has been violated before
the court is warranted in interfering. In any event, whether an
entire constitution is involved, or merely an amendment, the
federal courts will not attempt to pass on the legality of such
constitution or amendment where its validity has been
recognized by the political departments of the state
government, and acquiesced in by the state judiciary. (12 C.J.,
pp. 880, 881.)
VI
Otra razon que aduce la mayoria para desestimar el recusro es que la
copia impresa de la resolucion en cuestionaparece certificada por los
presidentes de ambas Camaras del Congreso; que en esa certificacion
consta que dicha resolucion fue debidamente aprobada por el Congreso
conlos votos de las tres quintas-partes (3/5) de sus miembros; que, por
tanto, la debida aprobacion de dicha resolucion nose puede cuestionar,
es una prueba concluyente para todoel mundo y para los tribunales de
justicia particularmente. Este argumento se funda en la doctrina inglesa
llamada "enrolled act doctrine," cuya traduccion mas aproximada al
español es "doctrina de la ley impresa." Esto, por unlado.
Por otro lado, la representacion de los recurrentes arguye que lo que rige
y prevaleced en esta jurisdiccion noes la doctrina inglesa o "enrolled act
doctrine," sino ladoctrina americana que se conoce con el nombre de
"journalentry doctrine," en virtud de la cual la prueba de siuna ley o una
resolucion ha sido debidamente aprobadapor el Congreso debe
buscarse en el diario de sesiones mismo del Congreso. Lo que diga el
diario de sesiones esconcluyente y final.
Los recurrentes tienen la razon de su parte. Este punto legal ya se
resolvio por esta Corte en la causa de los Estados Unidos contra Pons
(34 Jur. Fil., 772), que ambaspartes discuten en sus respectivos
informes. Una de las defensas del acusado era que la Ley No. 2381 de
la Legislatura Filipina en virtud de la cual habia sido condenado era nula
e ilegal porque so aprobo despues ya del cierrede las sesiones
especiales que tuvo lugar el 28 de Febrero de 1914, a las 12 de la
noche; es decir, que, en realidad de verdad, la aprobacion se efectuo el
1.º de Marzo, puesla sesion sine die del dia anterior se prolongo
mediante una ficcion haciendose parar las manecillas del reloj a las 12
en punto de la noche. Esta Corte, sin necesidad deninguna otra
prueba, examino el diario de sesiones correspondientea la referida fecha
28 de Febrero, y habiendo hallado que alli constaba inequivocamente
haberse aprobadola mencionada ley en tal fecha, fallo que esta
pruebaera final y concluyente para las partes, para los tribunales y para
todo el mundo. La Corte desatendio por completoel "enrolled act," la
copia impresa de la ley, pues dijo, asaber: "Pasando por alto la cuestion
relativa as si la Ley Impresa (Ley No. 2381), que fue aprobada por
autorizacion legal, constituye prueba concluyente sobre la fecha desu
aprobacion, investigaremos si los Tribunales pueden consultar otras
fuestes de informacion, ademas de los diarios de las sesiones
legislativas, para determinar la fecha enque se cerraron las sesiones de
la Legislatura, cuando talesdiarios son claros y explicitos." Y la Corte dijo
que nohabia necesidad de consultar otras fuestes, que el diario de
sesiones era terminante, definitivo; y asi fallo la causaen contra del
apelante.
Y no era extraño que asi ocurriese: habia en la Corte una mayoria
americana, familiarizada y compenetrada naturalmente con la
jurisprudencia pertinente de su pais ¿Quede extrano habia, por tanto,
que aplicasen la doctrina americana, la doctrina del "journal entry," que
es mas democratica, mas republicana, en vez de la doctrina inglesa, el
"enrolled act doctrine," que despues de todo tiene ciertotinte monarquico,
producto del caracter peculiar e influencia tradicionalista de las
instituciones inglesas? (Vease Rash vs. Allen, 76 Atl. Rep., 371; Del.)
Firman, como se sabe, la decision el ponente Sr. Trent, y los
Magistrados Sres. Torres, Johnson, Moreland y Araullo, sin mingun
disidente.Y notese que cuando se promulgo esta sentencia todavia
estaba en vigor el articulo 313 del Codigo de Procedimiento Civil, tal
como estaba reformado por la Ley No. 2210. que entre otras cosas
proveia lo siguiente: ". . .Entendiendose, que en el caso de las Leyes de
la Comisionde Filipinas o de la Legislatura Filipina, cuando existeuna
copia firmada por los Presidentes y los secretarios de dichos cuerpos,
sera prueba concluyente de las dispociones de la ley en cuestion y de la
debida aprobacion delas mismas." ¿Que mejor prueba de la voluntad
expresa, categorica, de hacer prevalecer la doctrina americana sobrela
doctrina inglesa? Lo mas comodo para esta Cortehubiera sido aplicar el
citado articulo 313 del Codigo de Procedimiento Civil. No lo hizo, paso
por alto sobreel mismo, yendo directamente al diario de sesiones dela
Legislatura, tomando conocimiento judicial del mismo. Si aqui hay algun
respeto a la regla del stare decisis, estaes una magnifica ocasion para
demostrarlo. Una regla bien establecida no ha de abrogarse asi como
asi; sobretodo cuando de por medio anda la Constitucion como enel
presente caso en que se ha formulado ante nosotros la queja de que la
ley fundamental ha sido violada en unrespecto muy importante como es
el capitulo sobre enmiendas, y la queja no solo no es temeraria sino que
se hallaapoyada en buenas y solidas razones.
Mas todavia: cuando se establecio la doctrina en lacitada causa de los
Estados Unidos contra Pons (1916, Agosto 12) adoptando en esta
jurisdiccion la doctrina americana del "journal entry" en lugar de la
inglesa del "enrolled act," en nuestra Ley Organica que, por cierto, no
era aun la Ley Jones sino la Ley del Congreso de 1902, no habia
ninguna disposicion que proveyera mandatoriamente que en el diario de
sesiones de la Legislatura sehiciesen constar los sies y los nos en la
votacion de cualquier proyecto de ley o resolucion, consignando
especifica mentelos nombres de los miembros que hayan votado enpro y
en contra, ni tampoco habia ninguna disposicione statutoria a dicho
efecto. De modo que en aquella epoca el diario de sesiones de la
Legislatura carecia aun de las fuertes garantias de veracidad que ahora
posee en virtud de esa disposicion que hace obligatoria la constancia
oconsignacion de los sies y nos, disposicion incorporada enla
Constitucion del Commonwealth, ahora de la Republica.
(Vease Constitucion de Filipinas, Articulo VI, seccion 10, inciso 4;
seccion 20, incico 1; seccion 21, inciso 2.)
Sobre la derogacion del articulo 313 del Codigo de Procedimiento Civil
no puede haber duda. Ese articulo, que equivale a una regla de prueba,
no se ha incorporado enel Reglamento de los Tribunales. No tratandose
de una regla fundada en un principio general y unanimemente
establecido, sino de algo peculiar aislado, acerca del cuallas autoridades
estan divididas, con una mayoria de los Estados de la Union americana
decididamente en contra, suno inclusion en el Reglamento de los
Tribunales tiene queconsiderarse necesariamente como una derogacion.
Indudablemente esta Corte, al no incluir dicho articulo en el Reglamento
de los Tribunales, ha querido derogarlo en vistade los resuelto en la
citada causa de Estados Unidos contraPons y de la novisima disposicion
insertada en la Constitucion del Commonwealth, ahora de la Republica,
que exige la consignacion en el diario de sesiones de lossies y nos en
cada votacion final de proyecto de ley o resolucion conjunta, con
especificacion de los nombres de los que hasvotado.
Resulta evidente de lo expuesto que ahora existen masrazones para
reafirmar en esta jurisdiccion la doctrina americana del "journal entry" o
"constancia en el diario desesiones" (1) porque el citado seccion 313 del
Codigo de Procedimiento Civil ya no rige con la vigencia del Reglamento
de los Tribunales; (2) porque esa disposicion denuestra Constitucion que
hace obligatoria la consignacion de los sies y nos en la votacion de cada
bill o resolucion, con especificacion de los nombres de los que hayan
votado enfavor y en contra, hace del diario de sesiones la mejor prueba
sobre autenticidad de los actos legislativos y es, porconsiguiente, la ley
sobre la materia en este pais, con entera exclusion de la doctrina inglesa
o "enrolled act doctrine."Las autoridades americanas son contestes en
que siempreque en un Estado de la Union Federal la
Constitucioncontiene una disposicion semejante a la nuestra
sobre sies y nos la regla de prueba no es la copia impresa de la leyo
"enrolled act," sino el "journal entry" o constancia enel diario de
sesiones. (Vease Rash vs. Allen, supra.)
Aqui se podria dar por terminada toda discusion sobre este punto si no
fuera porque los abogados de los recurridos arguyen fuertemente en
favor de la doctrina de la copia impresa o "enrolled act doctrine," y la
mayoria de esta Corte acepta sus argumentos. Se cita, sobre todo, el
asunto federal de Field vs. Clark en apoyo de la doctrina.
He examinado la jurisprudencia americana sobre este particular con toda
la diligencia de que he sido capaz y he llegado a la conclusion de que
nuestros predecesores enesta Corte merecen todo encomio por su
indubitable aciertoal adoptar en esta jurisdiccion, en la causa de los
Estados Unidos contra Pons, supra, la doctrina americana del "journal
entry" o constancia en el diario de sesiones legislativas. No cabe duda
de que esta doctrina es mas democratica, mas liberal, y tambien mas
humana y mas concorde con la realidad. La doctrina inglesa del "enrolled
act" ocopia impresa de la ley esta basada en el derecho comun y se
adopto en Inglaterra donde, como se sabe, no hay constitucion escrita y
la forma de gobierno es monarquica,y se adopto en un tiempo en que el
poder del Parlamento que era tambien el mas alto tribunal de justicia, era
absoluto y transcendente y las restricciones sobre el mismo eran muy
ligeras. Por eso un tribunal americano ha dicho: "Because such a rule
obtains as to the Parliament of Great Britain, under a monarchial form of
government, that cannot be regarded as a very potent reason for its
application in this state, where the will of the sovereign power hasbeen
declared in the organic act." (Vease Rash vs. Allen, supra, pag. 379; cito
con frecuencia este asunto famoso de Delaware porque es en el mismo
donde he hallado una discusion mas acabada y comprensiva sobre
ambas doctrinas: la americana del "journal entry" y la inglesa del
"enrolled act.")
Es indudable que el sesgo de la jurisprudencia americana hoy en dia es
a favor de la doctrina del "journal entry." Lo resuelto en el asunto federal
de Field contra Clark, enque tanto enfasis ponen los recurridos, no ha
hecho mas que fortalecer ese giro, pues en dicho asunto va en vuelta
lainferencia de que cuando la Constitucion establece ciertos requisitos
para la aprobacion de una ley o resolucion, conla consignacion de
los sies y nos y los nombres de los que han votado afirmativa y
negativamente, el diario de sesioneses el que rige y prevalece como
modo e instrumento de autenticacion. Por eso que en el asunto tipico y
representativode Union Bank vs. Commissioners of Oxford (199 N.C.,
214; 25 S.E., 966; 34 L.R.A., 487), la Corte Supremade North Carolina
ha declarado lo siguiente.
According to the law it is well settled in nearly 100 well-
adjudicated cases in the courts of last resort in 30 states, and
also by the Supreme Court of the United States, that when a
state Constitution prescribes such formalities in the enactment
of laws as require a record of the yeas and nays on the
legislative journals, these journals are conclusive as against
not only a printed statute, published by authority of law, but
also against a duly enrolled act. The following is a list of the
authorities, in number 93, sustaining this view either directly or
by very close analogy. . . . It is believed that no federal or state
authority can be found in conflict with them.
Decisions can be found, as, for instance, Carr. vs. Coke (116
N.C., 223; 22 S.E. 16; 28 L.R.A., 737; 47 Am. St. Rep.,
801, supra, to the effect that, where the Constitution contains
no provision requiring entries on the journal of particular
matters — such, for example, as calles of
the yeas and nays on a measure in question — the enrolled
act cannot, in such case, be impeached by the journals. That,
however, is very different proposition from the one involved
here, and the distinction is adverted to in Field vs. Clark, 143
U.S., 671 (12 Sup. Ct., 495; 36 Law. ed., 294. (Rash vs. Allen,
76 Atl. Rep., p. 377.)
Y en el asunto de Ottawa vs. Perkins la Corte Suprema de los Estados
Unidos ha dicho lo siguiente:
But the Supreme Court of the United States, in the case of
South Ottawa vs. Perkins, 94 U.S., 260; 24 Law., ed., 154, on
appeal from the United States court for the Northern district of
Illinois (Mr. Justice Bradley delivering the opinion), said: "When
once it became the settled construction of the Constitution of
Illinois that no act can be deemed a valid law, unless by the
journals of the Legislature it appears to have been regularly
passed by both houses, it became the duty of the courts to
take judicial notice of the journal entries in that regard. The
courts of Illinois may decline to take that trouble, unless parties
bring the matter to their attention, but on general principles the
question as to the existence of a law is a judicial one and must
be so regarded by the courts of the United States."
(Rash vs. Allen, 76 Atl. Rep., p. 387.)
Se dice que el interest publico exige que el "enrolled act" o copia
impresa de la ley firmada por los Presidentes deambas Camaras del
Congreso de declare concluyente y final, porque de otra manera habria
caos, confusion: cualquierase creeria con derecho a atacar la validez de
una ley o resolucion, impugnando la autenticidad de su aprobacion ode
su texto. Pero esto pone en orden las siguientes preguntas que se
contestan por si mismas: ?no es el diariode sesiones un documento
constitucional, exigido por la Constitucion que se lleve por las dos
camaras del Congreso, controlado y supervisado por dichas camaras y
por los oficiales de las mismas? ¿que mejor garantia de autenticidad,
contra la falsificacion, que ese requerimiento constitucional de consignar
obligatoriamente en el diario, en la votacionde todo bill o resolucion,
los sies y los nos, y haciendoconstar los nombres tanto afirmativos
como negativos? ¿se ha producido por ventura caos y confusion en los
Estados americanos que han adoptado esta regla y que, segun admiten
los mismos recurridos, forman una decisiva mayoria? ¿se acaso posible
concebir que el sentido americano, tan practico, tan utilitario, tan,
realista, optase poruna regla que fuese origen de caos y confusion?
Prescindiendo ya de la jurisprudencia que, ya hemos visto,
estadecididamente inclinada a favor de la doctrina americana del "journal
entry" ?que dicen los tratadistas mas autorizados, los de nombradia bien
establecida, y sobre todolos especialistas en derecho constitucional?
El Juez Cooley, en su celebrada obra sobre Constitutional Limitations,
7th ed., 193, dice lo siguiente a favor del "journal entry rule":
Judge Cooley in his work on Constitutional Limitations (7th Ed.,
193), says: "Each house keeps a journal of its proceedings
which is a public record, and of which the courts are at liberty
to take judicial notice. If it would appear from these journals
that any act did not receive the requisite majority, or that in
respect to it the Legislature did not follow any requirement of
the Constitution or that in any other respect the act was not
constitutionally adopted, the courts may act upon this
evidence, and adjudge the statute void. But whenever it is
acting in apparent performance of legal functions, every
reasonable presumption is to be made in favor of the action of
a legislative body. It will not be presumed in any case, from the
mere silence of the journals, that either house has exceeded
its authority, or disregarded a constitutional requirement in the
passage of legislative acts, unless when the Constitution has
expressly required the journals to show the action taken, as,
for instance, where it requires the yeas and nays to be
entered."
Sutherland, en su tambien celebrada obra sobre Statutory
Construction, seccion 46 y siguientes, tambien sedeclara a favofr del
"journal entry rule" con el siguiente pronunciamiento:
The presumption is that an act properly authenticated was
regularly passed, unless there is evidence of which the courts
take judicial notice showing the contrary. The journals are
records, and, in all respects touching proceedings under the
mandatory provisions of the Constitution, will be effected to
impeach and avoid the acts recorded as laws and duly
authenticated, if the journals affirmatively show that these
provisions have been disregarded. . . . The journals by being
required by the Constitution or laws, are record . . ..
When required, as is extensively the case in this country, by a
paramount law, for the obvious purpose of showing how the
mandatory provisions of that law have been followed in the
methods and forms of legislation, they are thus made records
in dignity, and are of great importance. The legislative acts
regularly authenticated are also records. The acts passed, duly
authenticated, and such journals are parallel records; but the
latter are superior, when explicit and conflicting with the other,
for the acts authenticated speak decisively only when the
journals are silent, and not even then as to particulars required
to be entered therein. (Rash vs. Allen, 76 Atl. Rep., p. 378.)
Desde luego la opinion de Wigmore, en que se apoya la mayoria,
merece toda clase de respetos. Pero creo no seme tachara de parcial ni
ligero si digo que sobre el punto constitucional que estamos discutiendo,
me inclino mas y doy mayor peso a la opinion del Juez Cooley y de
Sutherland, por razones obvias. Wigmore nunca pretendio
serespecialista en derecho constitucional. Con mucho tino elponente en
el tantas veces citado asunto de Rashcontra Allen dice lo siguiente de la
opinion del celebrado constitucionalista:
We have quoted Judge Cooley's language because of
the great respect that his opinions always command, and also
because of the fact that it is upon the authority of his opinion
that many of the decisions in support of the American rule
have been based. (Rash vs. Allen, 76 Atl. Rep., p. 378.)
Un detenido y minucioso examen de la jurisprudencia y de los tratados
sobre el particular lleva a uno al convencimiento de que la tendencia
actual en America es a tomar la substancia, el fondo mismo de las cosas
en vez de la simpleforma, el caparazon, a prescindir del artificio, de la
ficcion legal, para ir a la realidad misma. Y no cabe duda deque el
"enrolled act" se presta a veces a tener mas apoyo en el artificio y ficcion
legal, mientras que el diario desesiones, con las fuertes garantias de
autenticidad como las que se proveen en nuestra Constitucion y en
Constituciones similares americanas, reproduce y refleja la realidad de
los hechos relativamente con mas exactitud y fidelidad. Tomemos como
ejemplo el presente caso. La copia impresade la resolucion cuestionada,
firmada por los Presidentes de ambas Camaras del Congreso, reza que
la misma fueaprobada debidamente con los votos de las tres cuartas-
partes (3/4) del Congreso, pero esto no es mas que unaopinion, una
conclusion legal de los presidentes, pues noconsta en dicha copia
impresa el numero concreto de votos emitidos, ni el numero concreto de
la totalidad de miembros actuales de cada camara. Tampoco constan en
dichacopia impresa, tal como manda la Constitucion, los sies y nos de la
votacion, con los nombres de los que votaron afirmativa y
negativamente. Asi que, con solo esa copiaimpresa a la vista, no
podemos resolver la importantisima cuestion constitucional que plantean
los recurrentes, a saber: que la votacion fue anticonstitucional; que
arbitrariamente fueron excluidos de la votacion 11 miembros
debidamente cualificados del Congreso — 3 Senadores y 8
Representantes; que, por virtud de la exclusion ilegal y arbitraria de
estos 11 miembros, el numero de votos emitidosen cada camara a favor
de la resolucion no llegani constituye las tres cuartas-partes (3/4) que
requiere la Constitucion; y que, por tanto, la resolucion es ilegal, anti-
constitucional y nula. Para resolver estas cuestiones, todastremendas,
todas transcedentales, no hay mas remedio queir al fondo, a
las entrañas de la realidad, y todo ello no sepuede hallar en el "enrolled
act," en la copia impresa dela ley, que es incolora, muda sobre el
particular, sino enel diario de sesiones donde con profusion se dan tales
detalles. ¿No es verdad que todo esto demuestra graficamentela
evidente, abrumadora superioridad del "journalentry" sobre el "enrolled
act," como medio de prueba?
Mi conclusion, pues, sobre este punto es que el giro dela legislacion
jurisprudencia en los diferentes Estados de la Union es decididamente
en favor de la doctrina americana del "journal entry"; que en Filipinas
desde 1916 en que se promulgo la sentencia en la causa de Estados
Unidos contra Pons la regla es el "journal entry rule"; que esta regla se
adopto por este Supremo Tribunal enun tiempo en que estaba vigente el
articulo 313 del Codigo de Procedimiento Civil y cuando el diario de
sesiones de la Legislatura no gozaba de los prestigios de que goza hoy,
en virtud de las rigidas y fuertes garantias sobre autenticidad de las
votaciones legislativas provistas en nuestra Constitucion; que ahora que
el referido articulo 313 del Codigo de Procedimiento Civil ya ha sido
derogado porel Reglamento de los Tribunales y se hallan vigentes
esasgarantias constitucionales que son mandatorias, la reglaindiscutible
y exclusiva sobre la materia es el "journal entry rule"' que la regla
americana es mas liberal y mas democratica que la regla inglesa, la cual
tiene un evidente sabormonarquico; que el puebo filipino jamas tolerara
un sistemamonarquico o algo semejante; que el cambiar de regla ahora
es un paso muy desafortunado, un injustificado retroceso, un apoyo a la
reaccion y puede dar lugar a la impresionde que las instituciones de la
Republica filipina tienden a ser totalitarias; que la doctrina inglesa del
"enrolled act" es un instrumento harto inadecuado, ineficaz, para resolver
conflictos constitucionales que se iran planteando ante los tribunales, e
inclusive puede fomentargroseros asaltos contra la Constitucion; que,
por el contrario, la doctrina americana del "journal entry" es amplia,
eficaz, y permite que con toda libertad y desembarazose puedan
resolver los conflictos y transgresiones constitucionales, sin evasivas ni
debilidades; y, por ultimo, que nuestro deber, el deber de esta Corte, es
optar por la doctrina que mejor asegure y fomente los procesos
ordenadosde la ley y de la Constitucion y evitef situaciones en que el
ciudadano se sienta como desamparado de la ley y dela Constitucion y
busque la justicia por sus propias manos.
VII
La mayoria, habiendo adoptado en este asunto una posicion inhibitoria,
estima innecesario discutir la cuestion de si los 3 Senadores y 8
Representantes que fueron excluidos de la votacion son o no miembros
del Congreso. Es decir, lo que debiera ser cuestion fundamental —
el leitmotiff, la verdadera ratio decidendi en este caso — se relegaa
termino secundario, se deja sin discutir y sin resolver. No puedo seguir a
la mayoria en esta evasion: tengo que discutir este punto tan plenamente
como los otros puntos, si no mas, porque es precisamente lo principal —
el meollo del caso.
Comencemos por el Senado. Los 3 Senadores excluido seran miembros
actuales del Senado cuando se voto la resolucion cuestionada, por las
siguientes razones:
(a) Segun la estipulacion de hechos entre las partes y los ejemplares del
diario de sesiones que obran en autoscomo anexos, dichos Senadores
fueron proclamados por la Comision de Elecciones como electos
juntamente con sus 21 compañeros. Despues de la proclamacion
participaron en la organizacion del Senado, votando en la eleccion del
Presidente de dicho cuerpo. De hecho el Senador Vera recibio 8 votos
para Presidente contra el Senador Avelino que recibio 10. Tambien
participaron en algunos debates relativos a la organizacion.
(b) Tambien consta en la estipulacion de hechos y enel diario de
sesiones que prestaron su juramento de cargo ante Notarios particulares
debidamente autorizados y calificados para administrarlo, habiendose
depositado dicho juramento en la secretaria del Senado. Se dice, sin
embargo, que ese juramento no era valido porque no se presto
colectivamente, en union con los otros Senadores. Esto es unerror. La
Ley sobre la materia es el articulo 26 del Codigo Administrativo
Revisado, a saber:
By whom oath of office may be administered. — The oath of
office may be administered by any officer generally qualified to
administer oath; but the oath of office of the members and
officers ofeither house of the legislature may also be
administered by persons designated for such purpose by the
respective houses.
Este articulo es demasiado claro para necesitar mas comentarios. Es
evidente que el Senador y Representante puede calificarse prestando el
juramento de su cargo antecualquier funcionario autorizado para
administrarlo; y la disposicion de que tambien pueden administrar ese
juramento personas designadas por cada camara es solo decaracter
permisivo, opcional. Y la mejor prueba de estoes que antes del
advenimiento de la Republica el Senadodhabia reconocido la validez del
juramento de cargo prestadoante un Notario Publico por otros
Senadores de la minoria los Sres. Mabanag, Garcia, Confesor y Cabili.
Amenos que estas cosas se tomen a broma, o la arbitrariedadse erija en
ley — la ley de la selva, del mas fuerte — no esconcebible que el
juramento ante Notario se declare validoen un caso y en otro se declared
invalido, concurriendo lasmismas circunstancias;
(c) Tambien consta, en virtud de la estipulacion de hechos y de los
ejemplares del diario de sesiones que obran en autos como anexos, que
los Senadores Vera, Diokno y Romero han estado cobrando todos sus
sueldos y emolumentos como tales Senadores desde la inauguracion del
Senado hasta ahora, incluso naturalmente el tiempo en quese aprobo la
resolucion cuestionada. Es violentar demasiadola argucia el sostener
que un miembro de una camara legislativa puede cobrar todos sus
haberes y emolumentos y, sin embargo, no ser legalmente miembro de
la misma. El vulgo, maestro en la ironia y en el sarcasmo, tiene
unamanera cruda para pintar esta situacion absurda: "Tiene, pero no
hay". ¿Como es posible que las camaras autoricen el desembolso de
sus fondos a favor de unos hombres que, segun se sostiene seriamente,
no estan legalmente cualificados para merecer y recibir tales fondos?
(d) Se arguye, sin embargo, que los Senadores Vera, Diokno y Romero
no son miembros del Senado porque, envirtud de la Resolucion
Pendatun, se les suspendio el juramento y el derecho a sus asientos.
Respecto del juramento, ya hemos visto que era valido, segun la ley.
Respecto dela suspension del derecho al asiento, he discutido
extensamente este punto en mi disidencia en el asunto de
Vera contra Avelino, supra, calificando de anticonstitucional ynula la
suspension. Pero aun suponiendo que la mismafuera valida, los
recurrentes alegan y arguyen que no poreso han dejado de ser
miembros los suspendidos. La alegaciones acertada. La suspension no
abate ni anula lacalidad de miembro; solo la muerte, dimision o expulsion
produce ese efecto (vease Alejandrinocontra Quezon, 46 Jur. Fil., 100,
101; vease tambien United States vs. Dietrich,126 Fed. Rep., 676). En el
asunto de Alejandrino contra Quezon hemos declarado lo siguiente:
Es cosa digna de observar que el Congreso de los Estados
Unidos en toda su larga historia no ha suspendido a ninguno
de sus miembros.Y la razon es obvia. El castigo mediante
reprension o multavindica la dignidad ofendida de la Camara
sin privar a los representados de su representante; la
expulsion cuando es permisiblevindica del mismo modo el
honor del Cuerpo Legislativo dando asi oportunidad a los
representados de elegir a otro nuevo; pero la suspension priva
al distrito electoral de una representacion sin quese le de a
ese distrito un medio para llenar la vacante. Mediante la
suspension el cargo continua ocupado, pero al que lo ocupa
se le ha impuesto silencio. (Alejandrino contra Quezon, 46
Jur. Fil.,100, 101.)
La posicion juridica y constitucional de los 8 Representantes excluidos
de la votacion es todavia mas firme.Consta igualmente, en virtud de la
estipulacion de hechos y de los ejemplares del diario de sesiones
obrantes en autos, que dichos 8 Representantes tambien se calificaron,
alinaugurarse el Congreso, prestando el juramento de sucargo ante
Notarios Publicos debidamente autorizados; quesu juramento se
deposito en la Secretaria de la Camara; que han estado cobrando desde
la inauguracion hasta ahoratodos sus sueldos y emolumentos, excepto
dos los Representantes Taruc y Lava que han dejado de cobrar desde
hacealgun tiempo; que tambien han participado en algunas
deliberaciones, las relativas al proyecto de resolucion parasuspenderlos.
Pero entre su caso y el de los Senadores existe estadiferencia
fundamental: mientras con respecto a estos ultimosla Resolucion
Pendatun sobre suspension llego aaprobarse adquiriendo estado
parlamentario, en la Camarade Representantes no ha habido tal cosa,
pues la resolucionde suspension se endoso a un comite especial para su
estudioe investigacion, y hasta ahora la Camara no ha tomadosobre ella
ninguna accion, no favorable ni adversa. Demodo que en el caso de los
Representantes hasta ahora nohay suspension, porque de tal no puede
calificarse la acciondel Speaker y del macero privandoles del derecho
detomar parte en las deliberaciones y votaciones. Para queuna
suspension produzca efectos legales y, sobre todo, constitucionales,
tiene que decret arla la Camara misma, pormedio de una resolucion
debidamente aprobada, de acuerdocon los requisitos provistos en la
Constitucion. Nada deesto se ha hecho en la Camara.
El Articulo XV de nuestra Constitucion, sobre enmiendas, dice que "El
Congreso, en sesion conjunta, por el voto detres cuartas partes de todos
los miembros del Senado y dela Camara de Representantes votando
separadamente, puede proponer enmiendas a esta Constitucion o
convocar unaconvencion para dicho efecto." Donde la ley no distingueno
debemos distinguir. La frase todos los miembros debeinterpretarse
como que incluye todos los miembros elegidos, no importa que esten
ausentes o esten suspendidos; mas naturalmente cuando no estan
suspendidos como en el casode los ya citados 8 Representantes. El
Juez Cooley, ensu ya citada obraConstitutional Limitations, hace
sobreeste particular los siguientes comentarios que son terminantes para
la resolucion de este punto constitucional, a saber:
For the votre required in the passage of any particular law the
reader is referred to the Constitution of his State. A simple
majority of a quorum is sufficient, unless the Constitution
establishes some other rule; and where, by the Constitution, a
two-thirds of three-fourths vote is made essential to the
passage of any particular class of bills, two-thids or three-
fourths of a quorum will be understood, unless the terms
employed clearly indicate that this proportion of all the
members, or of all those elected, is intended. (A constitutional
requirement that the assent of two-thirds of the members
elected to each house of the legislature shall be requisite to
every bill appropriating the public money or property for localor
private purposes, is mandatory, and cannot be evaded by
calling a bill a "joint resolution".)
(Footnote: "Such a requirement is too clear and too valuable to
be thus frittered away." Allen vs. Board of State Auditors, 122
Mich., 324; 47 L.R.A., 117.)
(Footnote: "By most of the constitutions either all the laws, or
laws on some particular subjects, are required to be adopted
by a majority voted, or some other proportion of "all the
 members elected," or of "the whole representation." These and
similar phrases require all the members to be taken into
account whether present or not. Where a majority of all the
members elected is required in the passage of a law, an
ineligible person is not on that account to be excluded in the
count. (Satterloo vs. San Francisco, 23 Cal.,314.)" (Cooley on
Constitutional Limitations, Vol. 1, p. 291.)
VIII
Los recurridos no cuestionan la personalidad o derecho de accion de los
recurrentes para plantear el presente litigio. Sin embargo, en nuestras
deliberaciones algunos Magistrados han expresado dudas sbore si los
recurrentestien en interes legal suficiente y adecuado para demandar y,
por tanto, para invocar nuestra jurisdiccion en el presentecaso. La duda
es si el interes que alegan los recurrentesno es mas bien el general y
abstracto que tiene cualquier otro ciudadano para defender la integridad
de la Constitucion, en cuyo caso seria insuficiente para demandarante
los tribunales, los cuales, segun el consenso de las autoridades, no
estan establecidos para considerar y resolver controversias academicas
y doctrinales, sino conflictos positivos, reales, en que hay algun dano y
perjuicioo amago de dano y perjuicio.
Creo que la personalidad o derecho de accion de losrecurrentes es
incuestionable. En primer lugar, 11 de ellosson miembros del Congreso,
y alegan que se les privo delderecho de votar al considerarse la
resolucion cuestionaday que si se les hubiese permitido votar dicha
resolucion no hubiese obtenido la sancion de las tres cuartas-partes
(3/4) que requiere la Constitucion. ¿Que mayor interes legalque este?
Ellos dicen que sus votos hubieran sido decisivos, que con su
intervencion parlamentaria hubies en salvado alpaid de lo que
consideran amago de una tremenda calamidad publica — la concesion
de iguales derechos a los americanos para explotar nuestros recursos
naturales y utilidades publicas. ¿No es este amago de dano, para ellos
individualmente y para el pais colectivamentem, adecuado y suficiente
para crear un interes legal? En el asunto de Coleman vs. Miller, supra,
se suscito esta misma cuestion y se resolvio a favor de los recurrentes.
Como ya hemos visto, estos eran 20 Senadores del Estado de Kansas
que alegaban que en la propuesta ratificacion de la 18.ª Enmienda a la
Constitucion Federal sus votos que daron abatidos por elvoto decisivo
del Teniente Gobernador. La Corte Federal declaro que esto constituia
interes legal suficiente y adecuado.
En segundo lugar, los recurrentes alegan ser ciudadanos, electores y
contribuyentes de Filipinas. Naturalmente, como tales tienen derecho a
participar en la explotacion de nuestros recursos naturales y operacion
de utilidades publicas, con exclusion de los americanos y otros
extranjeros. De ello se sigue logicamente que cualguier actolegislativo
que anule y abrogue esa exclusividad afectarapersonalmente a sus
derechos, amagandolos de un probable perjuicio. Esto, a mi juicio, crea
un interes legalade cuado u suficiente para litigar. Esto no es un
interesmeramente academico, abstracto. (Vease Hawke vs.Smith, 253
U.S., 221, 227; 64 Law. ed., 871, 875; 40 Sup.Ct., 495; 10 A. L. R.,
1504; veanse tambien Leser vs.Garnett, 258 Ud.S., 130, 137; 66 Law.
ed., 505, 571; 42 Sup.Ct., 217; Coleman vs. Miller, 122 A. L. R., 698.)
En el asunto de Hawke vs. Smith, supra, el demandante alegaba ser
"ciudadano y elector del Estado de Ohio, y comoelector y contribuyente
del Condado de Hamilton, en sunombre y en el de otros similarmente
situados, presento una solicitud de prohibicion ante el tribunal del Estado
para que se prohibiera al Secretario de Estado a que gastara fondos
publicos en la preparacion e impresion de balotaspara la sumision al
electorado de la 18.ª Enmienda a la Constitucion Federal para su
ratificacion. La Corte Suprema Federal fallo que el demandante tenia
intereslegal y, por tanto, personalidad y derecho de accion para
demandar.
En el asunto de Leser vs. Garnett, supra, los demandantes alegaban ser
electores cualificados de Maryland y solicitaban la exclusion de ciertas
mujeres del censo electoralpor el fundamento de que la Constitucion de
Maryland limitaba el sufragio a los varones y la 19.ª Enmiendaa la
Constitucion Federal no habia sido validamente ratificadaa. Lo Corte
Suprema Federal fallo tambien que los demandantes tenian interes legal
suficiente y adecuado.
IX
Cuando se celebraron las audiencias en este asunto sele pregunto a uno
de los abogados de los recurridos, creo que el mismo Secretario de
Justicia, cual seria el remedio legal para los recurrentes, ya que se
sostiene que en elpresente caso se trate de una materia no judicial,
injusticiable, y, que, por tanto, los tribunales nada tienen que hacer. El
Secretario de Justicia contesto: ninguno. Lounico que los recurrentes
pueden hacer es esperar las elecciones y plantear el caso directamente
ante el pueblo, unico juez en las controversias de caracter politico. Esto
mismose dijo en el caso de Vera contra Aveino, supra, y reiterolo que
alli he dicho sobre este argumento, a saber:
Solo nos queda por considerar el argumento deprimente,
desalentadorde que el caso que nos ocupa no tiene remedio ni
bajo la Constitucion ni bajo las leyes ordinarias. A los
recurrentes se lesdice que no tienen mas que un recurso:
esperar laas elecciones y plantear directamente la cuestion
ante el pueblo elector. Si los recurrentes tienen razon, el
pueblo les reivindicara eligiendoles o elevandoa su partido al
poder, repudiando, en cambio, a los recurridoso a su partido.
Algunas cosas se podrian decir acerca de este argumento. Se
podria decir, por ejemplo, que el remedio no es expeditoni
adecuado porque la mayoria de los recurridos han sido
elegidos para un periodo de seis anos, asi que no se les podra
exigir ninguna responsabilidad por tan largo tiempo. Se podria
decir tambien que en una eleccion politica entran muchos
factores, y es posible quela cuestion que se discute hoy, con
ser tan fervida y tan palpitante, quede, cuando llegue el caso,
obscurecida por otros "issues" maspresionantes y decisivos.
Tambien se podria decir que, independientemente de la
justicia de su cuasa, un partido minoritario siemprelucha con
desventaja contra el partido mayoritario.
Pero, a nuestro juicio, la mejor contestacion al argumento
esque no cabe concebir que los redactores de la Constitucion
filipina hayan dejado en medio de nuestro sistema de gobierno
un peligros ovacio en donde quedan paralizados los resortes
de la Constituciony de la ley, y el ciudadano queda inerme,
impotente frente a lo que el considera flagrante transgresion
de sus derechos. Los redactoresde la Constitucion conocian
muy bien nuestro sistema de gobierno — sistema presidencial.
Sabian muy bien que este no tiene la flexibilidaddel tipo ingles
— el parlamentario. En Inglaterra y en lospaises que siguen su
sistema hay una magnifica valvula de seguridad politica;
cuando surge una grave crisis, de esas que sacudenlos
cimientos de la nacion, el parlamento se disuelve y se
convocanelleciones generales para que el pueblo decida los
grandes "issues" del dia. Asi se consuman verdaderas
revoluciones, sin sangre, sin violencia. El sistema presidential
no tiene esa valvula. El periodo que media de eleccion a
eleccion es inflexible. Entre nosotros, porejemplo, el periodo
es de seis años para el Senado, y de cuatro años para la
Camara de Representantes y los gobiernos provinciales y
municipales. Solamente se celebran elecciones especiales
para cubrir vacantes que ocurran entre unas elecciones
generalesy otras. Se comprendera facilmente que bajo un
sistema asi esharto peligroso, es jugar con fuego el posibilitar
situaciones dondeel individuo y el pueblo no puedan buscar el
amparo de la Constitucion y de las leyes, bajo procesos
ordenados y expeditos, paraprotegar sus derechos.
(Vera contra Avelino, pags. 363, 364.)
Fued Jefferson quien dijo que como medida de higiene politicaera
conveniente que el pueblo americano tuviera una revolucion cada veinte
años. Parece que el gran democratadijo esto no por el simple prurito de
jugar con laparadoja, con la frase, sino convencido de que la
revoluciones el mejor antidoto para la tirania o los amagos de tirania.
Grande como es el respeto que merecen las opiniones delinmortal autor
de la Decaraction de Independencia, creoque la revolucion es siempre
revolucion, la violencia es siempre violencia: caos, confusion,
desquiciamiento de los resortes politicos y sociales, derramamiento de
sangre, perdidade vidas y haciendas, etcetera, etcetera. Asi que
normalmente ninguno puede desear para su pais la violencia, aun en
nombre de la vitalidad, de la salud publica.
Estoy convencido de que el mejor ideal politico es la revolucionsin
sangre, esa que no pocas veces se ha consumado v. gr. en la historia
contemporanea de Inglaterra, yaun de America misma. Y ese ideal es
perfectamente realizable permitiendo el amplio juego de la Constitucion y
delas leyes, evitando pretextos a la violencia, y no posibilitando
situaciones de desamparo y desesperacion.
Por eso creo sinceramente que la mejor politica, la mejordoctrina judicial
es la que en todo tiempo encauza y fomentalos procesos ordenados de
la Constitucion y de la ley.
Footnotes
PERFECTO, J., dissenting:
1
 Omitted.
BRIONES, M., con quien esta conforme FERIA, M., dissidente:
1
 Jose O. Vera, Ramon Diokno y Jose E. Romero.
2
 Senadores: Alejo Mabanag, Carlos P. Garcia, Eulogio
Rodriguez, Tomas Confesor, Tomas Cabili, Jose O. Vera,
Ramon Diokno, y Jose E. Romero.
Representantes: Juvenal Almendras, Paulino Alonzo,
Apolinario Cabigon, Floro Crisologo, Gabriel Dunuan, Cosme
B. Garcia, Agustin Y. Kintanar, Vicente Logarta, Francisco A.
Perfecto, Cipriano P. Primicias, Nicolas Rafols, Jose V.
Rodriguez, Juan de G. Rodriguez, Felixberto M. Serrano,
Conrado Singson, George K. Tait, y Leandro A. Tojong.
Presidentes de Partido: Jose O. Vera, Jesus G. Barrera, Emilio
Javier y Sofronio Quimson, Nacionalista Party, Democratic
Alliance, Popular Front y Philippine Youth Party,
respectivamente.
3
 Comision de Elecciones: Jose Lopez Vito, Francisco Enage y
Vicente de Vera, respectivamente.
Marciano Guevara, Paciano Dizon y Pablo Lucas, Tesorero,
Auditor y Director de Imprenta, respectivamente.
4
 La politica de nacionalizacion de la recursos naturales
yutilidades publicas incorporada en nuestra Constitucion no es
unapolitica nueva, sino que trae su origen de nuestro pasado
remoto, dela historia colonial misma de España en Filipinas.
Los primeros conflictos de los filipinos con los conquistado es
tenian por causala propiedad de la tierra; los filipinos se
esforzaban por reivindicarel dominio del suelo que creian
detentado por los colonizadores. Estos conflictos fueron
agravandose con el tiempo condensan dose enla formidable
cuestion agraria que en las postrimerias del siglo diecinueve
fue enm gran parte la causa de la revolucion contra España.
American
capital in the Philippines will inevitably result in the permanent
retention of the Philippines by the United States.' At the climax
of ny speech I roared: If the preordained fate of my country is
either to be a subject people but rich, or free but poor, I am
unqualifiedly for the latter.'
"'The investigation was ordered by the House of
Representatives, and although the sales already made were
not annulled, no further sales were made in defiance of the
Congressional Act. (The Good Fight, by President Quezon, pp.
117-119.)'
Lass campanas de Rizal y de los laborantes, y el Katipunan de
Bonifacio tomaron gran parte de su fuerza, de su valor
combativo, delos agravios provocados por la cuestion agraria.
La Liga Filipinade Rizal estaba fundamentalmente basada en
un ideario economico nacionalista, de control y dominio sobre
la riqueza y recursos delpais.
"Cuando America establecio aqui su soberania su mayor
acierto consistio en echar los cimientos de su politica
fundamental de 'Filipinas para los filipinos.' Primero el
Presidente McKinley, y despues los Presidentes Taft y Wilson,
consolidaron esta politica. El congresoaprobo leyes tendentes
a la conservacion de terrenos publicos yrecursos naturales,
entre ellas la Ley de 1.º de Julio de 1902 conocida por Ley
Cooper. En estas leyes se limitaba y restringia la adquisiciony
uso de bienes de dominio publico por particulares.
"Una pruebaf palmaria del celo del Congreso americano por
mantener rigidamente la politica de conservacion del
patrimonio delos filipinos fue la investigacion congresional
provocada por el Congresista Martin, de Colorado, en relacion
con la venta de terrenos delos frailes en Mindoro, a una
compañia americana en exceso de las 1,024 hectareas fijadas
en las leyes de terrenos publicos. Esto diolugar a uno de los
episodios mas famosos en la carrera del Comisionado
Residente Quezon. Este relata su campaña en su
autobiografia 'The Good Fight,' a saber:
"'My next address to Congress took place when a
congressional investigation was being urged by Congressman
Martin of Colorado to determine how the Government of the
Philippines was carrying out the policy laid down by Congress,
that limited to 1024 acres the maximum area of government
land that could be sold to corporations or individuals. This law
had been enacted soon after the United States has taken the
Philippines to prevent the exploitation of the Filipino people by
capitalists, whether foreigners or natives. American capital
interested in the sugar industry has acquired two very large
tracts of land which the Philippine Government had bought
from the friars with the funds bonds issued under the security
of the Philippine Government. The avowed purpose in buying
these extensive properties from the Spanish religious orders
was to resell them in small lots to Filipino farmers, and thus to
do away with absentee landlordism which had been the most
serious cause of the Philippine rebellion against Spain. The
reason given for the sale of these lands to American capital by
the American official in charge of the execution of the
congressional policy were two-fold: First, that the act of
Congress referred only to lands of the public domain not to
lands acquired by the Government in some other way. And
second, that the sale of these lands was made in order to
establish the sugar industry in the Philippines on a truly grand
scale under modern methods, as had been done in Cuba. It
was further alleged that such a method would bring great
prosperity to the Philippines.
"'I spoke in support of the proposed investigation, contending
that the establishment of the sugar industry under those
conditions would mean the debasement of the Filipinos into
mere peons. 'Moreover,' I argued, 'large investments of
"Para implementar la politica de nacionalizacion el gobierno
filipino bajo la Ley Jones y la Ley del Commonwealth fundo
con una gruesa capitalizacion las corporaciones economicas
del Estado comoel Philippine National Bank, National
Development Company, National Cement Company, National
Power Corporation, y otras.
"Para reglamentar y supervisar las utilidades y servicios
publicos se creo la Comision de Servicios Publicos."

444444444
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners,  departments, agencies, commissions or boards.
vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE
BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his
capacity as SECRETARY OF THE DEPARTMENT OF BUDGET,
respondents, COMMISSION ON APPOINTMENTS, intervenor.
PADILLA, J.:
Once more the Court is called upon to delineate constitutional
boundaries. In this petition for prohibition, the petitioners, who are
taxpayers, lawyers, members of the Integrated Bar of the Philippines and
professors of Constitutional Law, seek to enjoin the respondent Salvador
Mison from performing the functions of the Office of Commissioner of the
Bureau of Customs and the respondent Guillermo Carague, as Secretary
of the Department of Budget, from effecting disbursements in payment of
Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is
unconstitutional by reason of its not having been confirmed by the
Commission on Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's appointment without
the confirmation of the Commission on Appointments.
Because of the demands of public interest, including the need for stability
in the public service, the Court resolved to give due course to the petition
and decide, setting aside the finer procedural questions of whether
prohibition is the proper remedy to test respondent Mison's right to the
Office of Commissioner of the Bureau of Customs and of whether the
petitioners have a standing to bring this suit.
By the same token, and for the same purpose, the Court allowed the
Commission on Appointments to intervene and file a petition in
intervention. Comment was required of respondents on said petition. The
comment was filed, followed by intervenor's reply thereto. The parties
were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it
involves a conflict between two (2) great departments of government, the
Executive and Legislative Departments. It also occurs early in the life of
the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively
clear provisions in the Constitution. In cases like this, we follow what the
Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad
Santos stated inGold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional
construction is to give effect to the intent of the
framers of the organic law and of the people
adopting it. The intention to which force is to be
given is that which is embodied and expressed in the
constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not
in accordance with how the executive or the legislative department may
want them construed, but in accordance with what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent
of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution. He shall also
appoint all other officers of the Government whose
appointments are not otherwise provided for by law,
and those whom he may be authorized by law to
appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution,
just quoted, there are four (4) groups of officers whom the President shall
appoint. These four (4) groups, to which we will hereafter refer from time
to time, are:
First, the heads of the executive departments,
ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution; 2
Second, all other officers of the Government whose
appointments are not otherwise provided for by
law; 3
Third, those whom the President may be authorized
by law to appoint;
Fourth, officers lower in rank 4 whose appointments
the Congress may by law vest in the President
alone.
The first group of officers is clearly appointed with the consent of the
Commission on Appointments. Appointments of such officers are initiated
by nomination and, if the nomination is confirmed by the Commission on
Appointments, the President appoints. 5
The second, third and fourth groups of officers are the present bone of
contention. Should they be appointed by the President with or without the
consent (confirmation) of the Commission on Appointments? By following
the accepted rule in constitutional and statutory construction that an
express enumeration of subjects excludes others not enumerated, it
would follow that only those appointments to positions expressly stated in
the first group require the consent (confirmation) of the Commission on
Appointments. But we need not rely solely on this basic rule of
constitutional construction. We can refer to historical background as well
as to the records of the 1986 Constitutional Commission to determine,
with more accuracy, if not precision, the intention of the framers of the
1987 Constitution and the people adopting it, on whether the
appointments by the President, under the second, third and fourth
groups, require the consent (confirmation) of the Commission on
Appointments. Again, in this task, the following advice of Mr. Chief
Justice J. Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that
a constitutional provision must be presumed to have
 been framed and adopted in the light and
understanding of prior and existing laws and with
reference to them. "Courts are bound to presume
that the people adopting a constitution are familiar
with the previous and existing laws upon the
subjects to which its provisions relate, and upon
which they express their judgment and opinion in its
adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W.,
769,65 L. R. A., 762.) 6
It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution,
it is provided that —
xxx xxx xxx
(3) The President shall nominate and with the
consent of the Commission on Appointments, shall
appoint the heads of the executive departments and
bureaus, officers of the army from the rank of
colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the
Government whose appointments are not herein
otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of
departments.
(4) The President shall havethe power to make
appointments during the recess of the Congress, but
such appointments shall be effective only until
disapproval by the Commission on Appointments or
until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on
Appointments, shall appoint ambassadors, other
public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of
bureaus and offices, the officers of the Armed
Forces of the Philippines from the rank of Brigadier
General or Commodore, and all other officers of The
government whose appointments are not herein
otherwise provided for, and those whom he may be
authorized by law to appoint. However, the Batasang
Pambansa may by law vest in the Prime Minister,
members of the Cabinet, the Executive Committee,
Courts, Heads of Agencies, Commissions, and
Boards the power to appoint inferior officers in their
respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments
required the consent (confirmation) of the Commission on Appointments.
It is now a sad part of our political history that the power of confirmation
by the Commission on Appointments, under the 1935 Constitution,
transformed that commission, many times, into a venue of "horse-
trading" and similar malpractices.
On the other hand, the 1973 Constitution, consistent with the
authoritarian pattern in which it was molded and remolded by successive
amendments, placed the absolute power of appointment in the President
with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the
other, in the 1973 Constitution, it is not difficult for the Court to state that
the framers of the 1987 Constitution and the people adopting it, struck a
"middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and
leaving to the President, without such confirmation, the appointment of
other officers, i.e., those in the second and third groups as well as those
in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this
conclusion. The original text of Section 16, Article VII, as proposed by the
Committee on the Executive of the 1986 Constitutional Commission, read
as follows:
Section 16. The president shall nominate and, with
the consent of a Commission on Appointment, shall
appoint the heads of the executive departments
and bureaus, ambassadors, other public ministers
and consuls, or officers of the armed forces from the
rank of colonel or naval captain and all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress
may by law vest the appointment of inferior officers
in the President alone, in the courts, or in the heads
of departments 7 [Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in
the 1935 Constitution. When the frames discussed on the floor of the
Commission the proposed text of Section 16, Article VII, a feeling was
manifestly expressed to make the power of the Commission on
Appointments over presidential appointments more limited than that held
by the Commission in the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that
Commissioner Monsod be
recognized
The President: We will call
Commissioner Davide later.
Mr. Monsod: With the Chair's
indulgence, I just want to take a
few minutes of our time to lay
the basis for some of the
amendments that I would like to
propose to the Committee this
morning.
xxx xxx xxx
On Section 16, I would like to suggest that the
power of the Commission on Appointments be
limited to the department heads, ambassadors,
generals and so on but not to the levels of bureau
heads and colonels.
xxx xxx xxx 8 (Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2)
major changes proposed and approved by the Commission. These were
(1) the exclusion of the appointments of heads of bureaus from the
requirement of confirmation by the Commission on Appointments; and (2)
the exclusion of appointments made under the second sentence 9 of the
section from the same requirement. The records of the deliberations of
the Constitutional Commission show the following:
MR. ROMULO: I ask that
Commissioner Foz be
recognized
THE PRESIDENT:
Commissioner Foz is
recognized
MR. FOZ: Madam President, my
proposed amendment is on
page 7, Section 16, line 26
which is to delete the words
 "and bureaus," and on line 28 of MR. FOZ: Yes.
the same page, to change the
phrase 'colonel or naval captain
MR. MAAMBONG: Thank you.
to MAJOR GENERAL OR
REAR ADMIRAL. This last
amendment which is co- THE PRESIDENT: Is this clear
authored by Commissioner de now? What is the reaction of the
Castro is to put a period (.) after Committee?
the word ADMIRAL, and on line
29 of the same page, start a
xxx xxx xxx
new sentence with: HE SHALL
ALSO APPOINT, et cetera.
MR. REGALADO: Madam
President, the Committee feels
MR. REGALADO: May we have
that this matter should be
the amendments one by one.
submitted to the body for a vote.
The first proposed amendment
is to delete the words "and
bureaus" on line 26. MR. DE CASTRO: Thank you.

MR. FOZ: That is correct. MR. REGALADO: We will take

the amendments one by
one. We will first vote on the
MR. REGALADO: For the
deletion of the phrase 'and
benefit of the other
bureaus on line 26, such that
Commissioners, what would be
appointments of bureau
the justification of the proponent
directors no longer need
for such a deletion?
confirmation by the Commission
on Appointment.
MR. FOZ: The position of
bureau director is actually quite
Section 16, therefore, would read: 'The President
low in the executive department,
shall nominate, and with the consent of a
and to require further
Commission on Appointments, shall appoint the
confirmation of presidential
heads of the executive departments, ambassadors. .
appointment of heads of
..
bureaus would subject them to
political influence.
THE PRESIDENT: Is there any
objection to delete the phrase
MR. REGALADO: The
'and bureaus' on page 7, line
Commissioner's proposed
26? (Silence) The Chair hears
amendment by deletion also
none; the amendments is
includes regional directors as
approved.
distinguished from merely staff
directors, because the regional
directors have quite a plenitude xxx xxx xxx
of powers within the regions as
distinguished from staff directors
who only stay in the office. MR. ROMULO: Madam
President.

MR. FOZ: Yes, but the regional

directors are under the THE PRESIDENT: The Acting
supervisiopn of the staff bureau Floor Leader is recognized.
directors.
THE PRESIDENT:
xxx xxx xxx Commissioner Foz is
recognized

MR. MAAMBONG: May I direct

a question to Commissioner MR. FOZ: Madam President,
Foz? The Commissioner this is the third proposed
proposed an amendment to amendment on page 7, line 28.
delete 'and bureaus on Section 1 propose to put a period (.)
16. Who will then appoint the after 'captain' and on line 29,
bureau directors if it is not the delete 'and all' and substitute it
President? with HE SHALL ALSO
APPOINT ANY.

MR. FOZ: It is still the President

who will appoint them but their MR. REGALADO: Madam
appointment shall no longer be President, the Committee
subject to confirmation by the accepts the proposed
Commission on Appointments. amendment because it makes it
clear that those other officers
mentioned therein do not have
MR. MAAMBONG: In other to be confirmed by the
words, it is in line with the same Commission on Appointments.
answer of Commissioner de
Castro?
MR. DAVIDE: Madam
President.
 THE PRESIDENT:
Commissioner Davide is
recognized.
xxx xxx xxx
MR. DAVIDE: So would the
proponent accept an
amendment to his amendment,
so that after "captain" we insert
the following words: AND
OTHER OFFICERS WHOSE
APPOINTMENTS ARE
VESTED IN HIM IN THIS
CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words,
there are positions provided for
in the Constitution whose
appointments are vested in the
President, as a matter of fact
like those of the different
constitutional commissions.
FR. BERNAS: That is correct.
This list of officials found in
Section 16 is not an exclusive
list of those appointments which
constitutionally require
confirmation of the Commission
on Appointments,
MR. DAVIDE: That is the reason
I seek the incorporation of the
words I proposed.
FR. BERNAS: Will
Commissioner Davide restate
his proposed amendment?
MR. DAVIDE: After 'captain,'
add the following: AND OTHER
OFFICERS WHOSE
APPOINTMENTS ARE
VESTED IN HIM IN THIS
CONSTITUTION.
FR. BERNAS: How about:"AND
OTHER OFFICERS WHOSE
APPOINTMENTS REQUIRE
CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam
President, that is modified by
the Committee.
FR. BERNAS: That will clarify
things.
THE PRESIDENT: Does the
Committee accept?
MR. REGALADO: Just for the
record, of course, that excludes
those officers which the
Constitution does not require
confirmation by the Commission
on Appointments, like the
members of the judiciary and
the Ombudsman.
MR. DAVIDE: That is correct.
That is very clear from the
modification made by
Commissioner Bernas.
THE PRESIDENT: So we have
now this proposed amendment
of Commissioners Foz and
Davide.
xxx xxx xxx
THE PRESIDENT: Is there any
objection to this proposed
amendment of Commissioners
Foz and Davide as accepted by
the Committee? (Silence) The
Chair hears none; the
amendment, as amended, is
approved 10 (Emphasis
supplied).
It is, therefore, clear that appointments to the second
and third groups of officers can be made by the
President without the consent (confirmation) of the
Commission on Appointments.
It is contended by amicus curiae, Senator Neptali
Gonzales, that the second sentence of Sec. 16,
Article VII reading-
He (the President) shall also appoint all other officers
of the Government whose appointments are not
otherwise provided for by law and those whom he
may be authorized by law to appoint . . . . (Emphasis
supplied)
with particular reference to the word "also," implies that the President
shall "in like manner" appoint the officers mentioned in said second
sentence. In other words, the President shall appoint the officers
mentioned in said second sentence in the same manner as he appoints
officers mentioned in the first sentence, that is, by nomination and with
the consent (confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is
not necessarily supportive of the conclusion he arrives at. For, as the
Solicitor General argues, the word "also" could mean "in addition; as well;
besides, too" (Webster's International Dictionary, p. 62, 1981 edition)
which meanings could, on the contrary, stress that the word "also" in said
second sentence means that the President, in addition to nominating
and, with the consent of the Commission on Appointments, appointing
the officers enumerated in the first sentence, can appoint (without such
consent (confirmation) the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible meanings of
the word "also" as used in the context of said second sentence, the Court
has chosen to derive significance from the fact that the first sentence
speaks of nomination by the President and appointment by the President
with the consent of the Commission on Appointments, whereas, the
second sentence speaks only of appointment by the President. And, this
use of different language in two (2) sentences proximate to each other
underscores a difference in message conveyed and perceptions
established, in line with Judge Learned Hand's observation that "words
are not pebbles in alien juxtaposition" but, more so, because the
recorded proceedings of the 1986 Constitutional Commission clearly and
expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the
1987 Constitution, there are officers whose appointments require no
confirmation of the Commission on Appointments, even if such officers
may be higher in rank, compared to some officers whose appointments
have to be confirmed by the Commission on Appointments under the first
sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the
appointment of the Central Bank Governor requires no confirmation by
the Commission on Appointments, even if he is higher in rank than a
colonel in the Armed Forces of the Philippines or a consul in the
Consular Service.
But these contrasts, while initially impressive, merely underscore the
purposive intention and deliberate judgment of the framers of the 1987
Constitution that, except as to those officers whose appointments require
the consent of the Commission on Appointments by express mandate of
the first sentence in Sec. 16, Art. VII, appointments of other officers are
left to the President without need of confirmation by the Commission on
Appointments. This conclusion is inevitable, if we are to presume, as we
must, that the framers of the 1987 Constitution were knowledgeable of
what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential
in character. Limitations on or qualifications of such power should be
strictly construed against them. Such limitations or qualifications must be
clearly stated in order to be recognized. But, it is only in the first sentence
of Sec. 16, Art. VII where it is clearly stated that appointments by the
President to the positions therein enumerated require the consent of the
Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the
intervenor Commission on Appointments underscores the third sentence
in Sec. 16, Article VII of the 1987 Constitution, which reads:
The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in
the courts, or in the heads of departments, agencies,
commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-
ranked officers in the President alone, this implies that, in the absence of
such a law, lower-ranked officers have to be appointed by the President
subject to confirmation by the Commission on Appointments; and, if this
is so, as to lower-ranked officers, it follows that higher-ranked officers
should be appointed by the President, subject also to confirmation by the
Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of
Sec. 16, Article VII, abovequoted, merely declares that, as to lower-
ranked officers, the Congress may by law vest their appointment in the
President, in the courts, or in the heads of the various departments,
agencies, commissions, or boards in the government. No reason
however is submitted for the use of the word "alone" in said third
sentence.
The Court is not impressed by both arguments. It is of the considered
opinion, after a careful study of the deliberations of the 1986
Constitutional Commission, that the use of the word alone" after the word
"President" in said third sentence of Sec. 16, Article VII is, more than
anything else, a slip or lapsus in draftmanship. It will be recalled that, in
the 1935 Constitution, the following provision appears at the end of par.
3, section 1 0, Article VII thereof —
...; but the Congress may by law vest the
appointment of inferior officers, in the
President alone, in the courts, or in the heads of
departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after
the provision which makes practically all presidential appointments
subject to confirmation by the Commission on Appointments, thus-
3. The President shall nominate and with the
consent of the Commission on Appointments, shall
appoint the heads of the executive departments and
bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of
captain or commander, and all other officers of the
Government whose appointments are not herein
provided for, and those whom he may be authorized
by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule,
presidential appointments to confirmation by the Commission on
Appointments, the same 1935 Constitution saw fit, by way of an
exception to such rule, to provide that Congress may, however, by law
vest the appointment of inferior officers (equivalent to 11 officers lower in
rank" referred to in the 1987 Constitution) in the President alone, in the
courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments
from confirmation by the Commission on Appointments, except
appointments to offices expressly mentioned in the first sentence of Sec.
16, Article VII. Consequently, there was no reason to use in the third
sentence of Sec. 16, Article VII the word "alone" after the word
"President" in providing that Congress may by law vest the appointment
of lower-ranked officers in the President alone, or in the courts, or in the
heads of departments, because the power to appoint officers whom he
(the President) may be authorized by law to appoint is already vested in
the President, without need of confirmation by the Commission on
Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated
merely that, in the case of lower-ranked officers, the Congress may by
law vest their appointment in the President, in the courts, or in the heads
of various departments of the government. In short, the word "alone" in
the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a
literal import from the last part of par. 3, section 10, Article VII of the 1935
Constitution, appears to be redundant in the light of the second sentence
of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear
and positive intent of the framers of the 1987 Constitution that
presidential appointments, except those mentioned in the first sentence
of Sec. 16, Article VII, are not subject to confirmation by the Commission
on Appointments.
Coming now to the immediate question before the Court, it is evident that
the position of Commissioner of the Bureau of Customs (a bureau head)
is not one of those within the first group of appointments where the
consent of the Commission on Appointments is required. As a matter of
fact, as already pointed out, while the 1935 Constitution includes "heads
of bureaus" among those officers whose appointments need the consent
of the Commission on Appointments, the 1987 Constitution on the other
hand, deliberately excluded the position of "heads of bureaus" from
appointments that need the consent (confirmation) of the Commission on
Appointments.
Moreover, the President is expressly authorized by law to appoint the
Commissioner of the Bureau of Customs. The original text of Sec. 601 of
Republic Act No. 1937, otherwise known as the Tariff and Customs Code
of the Philippines, which was enacted by the Congress of the Philippines
on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of
Customs shall have one chief and one assistant
chief, to be known respectively as the Commissioner
(hereinafter known as the 'Commissioner') and
Assistant Commissioner of Customs, who shall each
receive an annual compensation in accordance with
the rates prescribed by existing laws. The Assistant
Commissioner of Customs shall be appointed by the
proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972
by Presidential Decree No. 34, amending the Tariff and Customs Code of
the Philippines. Sec. 601, as thus amended, now reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-
The Bureau of Customs shall have one chief and
one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner)
and Deputy Commissioner of Customs, who shall
each receive an annual compensation in accordance
with the rates prescribed by existing law. The
Commissioner and the Deputy Commissioner of
Customs shall be appointed by the President of the
Philippines (Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved
during the effectivity of the 1935 Constitution, under which the President
may nominate and, with the consent of the Commission on
Appointments, appoint the heads of bureaus, like the Commissioner of
the Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937
and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the
result that, while the appointment of the Commissioner of the Bureau of
Customs is one that devolves on the President, as an appointment he is
authorizedby law to make, such appointment, however, no longer needs
the confirmation of the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within
her constitutional authority and power in appointing respondent Salvador
Mison, Commissioner of the Bureau of Customs, without submitting his
nomination to the Commission on Appointments for confirmation. He is
thus entitled to exercise the full authority and functions of the office and
to receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they
are, hereby DISMISSED. Without costs.
SO ORDERED.
Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes,
JJ., concur.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its
constitutional duty, to adjudicate promptly the issue at bar and to rule that
the direct appointment of respondent Salvador Mison as Commissioner
of the Bureau of Customs (without need of submitting a prior nomination
to the Commission on Appointments and securing its confirmation) is
valid and in accordance with the President's constitutional authority to so
appoint officers of the Government as defined in Article VII, section 16 of
the 1987 Constitution. The paramount public interest and the exigencies
of the public service demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor
deal with the Manifestation of December 1, 1987 filed by the intervenor
that Senate Bill No. 137 entitled "An Act Providing For the Confirmation
By the Commission on Appointments of All Nominations and
Appointments Made by the President of the Philippines" was passed on
23 October 1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The Court has
resolved the case at bar on the basis of the issues joined by the parties.
The contingency of approval of the bill mentioned by intervenor clearly
has no bearing on and cannot affect retroactively the validity of the direct
appointment of respondent Mison and other appointees similarly situated
as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor-
Santiago." The Court does not deal with constitutional questions in the
abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of
view that would enable it to render judgment after mature deliberation. As
stressed at the hearing of December 8, 1987, any discussion of the
reported bill and its validity or invalidity is premature and irrelevant and
outside the scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of
Justice Sarmiento, and simply wish to add my own reading of the
Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent
of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint.
The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in
the courts, or in the heads of the departments,
agencies, commissions or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st
three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it
is clear that the President "nominates" and with the consent of the
Commission on Appointments "appoints" the officials enumerated. The
second sentence, however, significantly uses only the term "appoint" all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. Deliberately eliminated was any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the
appointees mentioned in the second sentence from confirmation by the
Commission on Appointments is, to my mind, quite clear. So also is the
fact that the term "appoint" used in said sentence was not meant to
include the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were the intent, the
same terminologies in the first sentence could have been easily
employed.
There should be no question either that the participation of the
Commission on Appointments in the appointment process has been
deliberately decreased in the 1987 Constitution compared to that in the
1935 Constitution, which required that all presidential appointments be
with the consent of the Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some
incongruous situations as stressed in the dissenting opinion of Justice
Cruz. The remedy therefor addresses itself to the future. The task of
constitutional construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M. Tuason & Co.,
Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970,
31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential
appointments are subject to prior Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the
consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or
 officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or
boards.
The President shall have the power to make
appointments during recess of the Congress,
whether voluntary or compulsory, but such
appointment shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those
grouped under the first sentence are required to undergo a consenting
process. This is a significant departure from the procedure set forth in the
1935 Charter:
(3) The President shall nominate and with the
consent of the Commission on Appointments, shall
appoint the heads of the executive departments and
bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of
captain to commander, and all other officers of the
Government whose appointments are not herein
otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of
departments. 2
under which, as noted by the majority, "almost all presidential
appointments required the consent (confirmation) of the Commission on
Appointments. 3 As far as the present Charter is concerned, no extrinsic
aid is necessary to ascertain its meaning. Had its framers intended
otherwise, that is to say, to require all Presidential appointments
clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments
that the President may make: (1) appointments of heads of executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and
those of other officers whose appointments are vested in him under the
Constitution, including the regular members of the Judicial and Bar
Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on
Elections, 7and the Chairman and Commissioners of the Commission on
Audit; 8 (2) those officers whose appointments are not otherwise provided
for by law; (3) those whom he may be authorized by law to appoint; and
(4) officers lower in rank whose appointments the Congress may vest in
the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the
fundamental law have written a "rather confused Constitution" 9 with
respect, to a large extent, to its other parts, and with respect, to a certain
extent, to the appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's appointment
needs confirmation whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the
Charter is not for us to judge. That is a question addressed to the
electorate, and who, despite those "eccentricities," have stamped their
approval on that Charter. "The Court," avers the majority, "will thus
construe the applicable constitutional provisions, not in accordance with
how the executive or the legislative department may want them
construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an
exercise of executive power. 11 The fact that the Constitution has
provided for a Commission on Appointments does not minimize the
extent of such a power, much less, make it a shared executive-legislative
prerogative. In Concepcion v. Paredes, we stated in no uncertain terms
that "[a]ppointment to office is intrinsically an executive act involving the
exercise of discretion." 12 Springer v. Philippine Islands 13 on the other
hand, underscored the fact that while the legislature may create a public
office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot
circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself
conferring the appointment.
Thus, notwithstanding the existence of a Commission on Appointments,
the Chief Executive retains his supremacy as the appointing authority. In
case of doubt, the same should be resolved in favor of the appointing
power.
It is the essence of a republican form of government, like ours, that
"[e]ach department of the government has exclusive cognizance of
matters within its jurisdiction." 14 But like all genuine republican systems,
no power is absolutely separate from the other. For republicanism
operates on a process of checks and balances as well, not only to guard
against excesses by one branch, but more importantly, "to secure
coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments
acts as a restraint against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a possibly
hostile Congress, an unhappy lesson as the majority notes, in our history
under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on
appointments. The prohibition, for instance, against the enactment of a
bill of attainder operates as a bar against legislative encroachment upon
both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions,
respective y. 16
And then, the cycle of checks and balances pervading the Constitution is
a sword that cuts both ways. In a very real sense, the power of
appointment constitutes a check against legislative authority. In Springer
v. Philippine Islands, 17we are told that "Congress may not control the
law enforcement process by retaining a power to appoint the individual
who will execute the laws." 18 This is so, according to one authority,
because "the appointments clause, rather than 'merely dealing with
etiquette or protocol,' seeks to preserve an executive check upon
legislative authority in the interest of avoiding an undue concentration of
power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that matter, no
other department of the Government may discharge that function, least of
all Congress. Accordingly, a statute conferring upon a commission the
responsibility of administering that very legislation and whose members
have been determined therein, has been held to be repugnant to the
Charter. 21 Execution of the laws, it was held, is the concern of the
President, and in going about this business, he acts by himself or through
his men and women, and no other.
The President, on the other hand, cannot remove his own appointees
"except for cause provided by law." 22Parenthetically, this represents a
deviation from the rule prevailing in American jurisdiction that "the power
of removal . . . [is] incident to the power of appointment, 23 although this
has since been tempered in a subsequent case, 24 where it was held that
the President may remove only "purely executive officers, 25 that is,
officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court
held that the President may remove incumbents of offices confidential in
nature, but we likewise made clear that in such a case, the incumbent is
not "removed" within the meaning of civil service laws, but that his term
merely expires.
It is to be observed, indeed, that the Commission on Appointments, as
constituted under the 1987 Constitution, is itself subject to some check.
Under the Charter, "[tlhe Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either
consent or not consent to the appointments preferred before it within the
prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the
boundaries of power are blurred by the predominance of checks and
counterchecks, yet amid such a rubble of competing powers emerges a
structure whose parts are at times jealous of each other, but which are
ultimately necessary in assuring a dynamic, but stable, society. As Mr.
Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not
establish and divide fields of black and white. Even
the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to
the other. ... When we come to the fundamental
distinctions it is still more obvious that they must be
received with a certain latitude or our government
could not go on.
xxx xxx xxx
It does not seem to need argument to show that
however we may disguise it by veiling words we do
not and cannot carry out the distinction between
legislative and executive action with mathematical
precision and divide the branches into watertight
compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the
Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these
"checks and counterpoises, which Newton might
readily have recognized as suggestive of the
mechanism of the heavens," (W. Wilson,
Constitutional Government in the United States 56
(1908)] can represent only the scaffolding of a far
more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal
document, to be read as a will or a contract would
be. It must, of the necessity of the case, be a vehicle
of life.") The great difficulty of any theory less rich,
Woodrow Wilson once warned, "is that government
is not a machine, but a living thing. It falls, not under
the theory of the universe, but under the theory of
organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer
pressure of life. No living thing can have its organs
offset against each other as checks, and five." (Id. at
56.) Yet because no complex society can have its
centers of power not "offset against each other as
checks," and resist tyranny, the Model of Separated
and Divided Powers offers continuing testimony to
the undying dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973
Constitution deliberately denied the legislature (the National Assembly
under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing
power. 30 As a delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding officer of most
of its plenary session, I am aware that the Convention did not provide for
a commission on appointments on the theory that the Prime Minister, the
head of the Government and the sole appointing power, was himself a
member of parliament. For this reason, there was no necessity for a
separate body to scrutinize his appointees. But should such appointees
forfeit the confidence of the assembly, they are, by tradition, required to
resign, unless they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such
appointments. Unfortunately, supervening events forestalled our
parliamentary experiment, and beginning with the 1976 amendments and
some 140 or so amendments thereafter, we had reverted to the
presidential form, 32 without provisions for a commission on
appointments.
In fine, while Presidential appointments, under the first sentence of
Section 16, of Article VII of the present Constitution, must pass prior
Congressional scrutiny, it is a test that operates as a mere safeguard
against abuse with respect to those appointments. It does not accord
Congress any more than the power to check, but not to deny, the Chief
Executive's appointing power or to supplant his appointees with its own.
It is but an exception to the rule. In limiting the Commission's scope of
authority, compared to that under the 1935 Constitution, I believe that the
1987 Constitution has simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution,
as the supreme law of the land, should never have any of its provisions
interpreted in a manner that results in absurd or irrational consequences.
The Commission on Appointments is an important constitutional body
which helps give fuller expression to the principles inherent in our
presidential system of government. Its functions cannot be made
innocuous or unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the President shares in
the enactment of laws which govern the nation, the legislature, through
its Commission on Appointments, gives assurance that only those who
can pass the scrutiny of both the President and Congress will help run
the country as officers holding high appointive positions. The third
sentence of the first paragraph — " ... The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in
the courts, or in the heads of departments, agencies, commissions, or
boards." — specifies only "officers lower in rank" as those who may, by
law, be appointed by the President alone. If as expounded in the majority
opinion, only the limited number of officers in the first sentence of Section
16 require confirmation, the clear intent of the third sentence is lost. In
fact both the second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an important part of
the Constitution.
I agree with the intervenor that all provisions of the Constitution on
appointments must be read together. In providing for the appointment of
members of the Supreme Court and judges of lower courts (Section 9,
Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the
Vice President as a member of cabinet (Section 3, Article VII) and, of
course, those who by law the President alone may appoint, the
Constitution clearly provides no need for confirmation. This can only
mean that all other appointments need confirmation. Where there is no
need for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares. Without such a
declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on
Appointments because the government it set up was supposed to be a
parliamentary one. The Prime Minister, as head of government, was
constantly accountable to the legislature. In our presidential system, the
interpretation which Justice Cruz and myself espouse, is more
democratic and more in keeping with the system of government
organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly
as follows: Confirmation is required only for the officers mentioned in the
first sentence of Section 16, to wit: (1) the heads of the executive
departments; (2) ambassadors, other public ministers and consuls; (3)
officers of the armed forces from the rank of colonel or naval captain; and
(4) other officers whose appointments are vested in the President in the
Constitution. No confirmation is required under the second sentence for
(1) all other officers whose appointments are not otherwise provided for
by law, and (2) those whom the President may be authorized by law to
appoint. Neither is confirmation required by the third sentence for those
other officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who
is not the head of his department, does not have to be confirmed by the
Commission on Appointments, but the ordinary consul, who is under his
jurisdiction, must be confirmed. The colonel is by any standard lower in
rank than the Chairman of the Commission on Human Rights, which was
created by the Constitution; yet the former is subject to confirmation but
the latter is not because he does not come under the first sentence. The
Special Prosecutor, whose appointment is not vested by the Constitution
in the President, is not subject to confirmation under the first sentence,
and neither are the Governor of the Central Bank and the members of
the Monetary Board because they fall under the second sentence as
interpreted by the majority opinion. Yet in the case of the multi-sectoral
members of the regional consultative commission, whose appointment is
vested by the Constitution in the President under Article X, Section 18,
their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they
would lead to the absurd consequences we should avoid in interpreting
the Constitution.
There is no question that bureau directors are not required to be
confirmed under the first sentence of Section 16, but that is not the
provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us.
Significantly, although there was a long discussion of the first sentence in
the Constitutional Commission, there is none cited on the second
sentence either in the Solicitor-General's comment or in the majority
opinion. We can therefore only speculate on the correct interpretation of
this provision in the light of the first and third sentences of Section 16 or
by reading this section in its totality.
The majority opinion says that the second sentence is the exception to
the first sentence and holds that the two sets of officers specified therein
may be appointed by the President without the concurrence of the
Commission on Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably were not
envisioned by the framers.
One may wonder why it was felt necessary to include the second
sentence at all, considering the majority opinion that the enumeration in
the first sentence of the officers subject to confirmation is exclusive on
the basis of expressio unius est exclusio alterius. If that be so, the first
sentence would have been sufficient by itself to convey the Idea that
all other appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence
do not need confirmation, it was still felt necessary to provide in the third
sentence that the appointment of the other officers lower in rank will also
not need confirmation as long as their appointment is vested by law in
the President alone. The third sentence would appear to be superfluous,
too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in
the President alone the appointment of those other officers lower in rank
mentioned in the third sentence? Conformably to the language thereof,
these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the
second sentence will not.
Thus, a regional director in the Department of Labor and the labor
arbiters, as officers lower in rank than the bureau director, will have to be
confirmed if the Congress does not vest their appointment in the
President alone under the third sentence. On the other hand, their
superior, the bureau director himself, will not need to be confirmed
because, according to the majority opinion, he falls not under the first
sentence but the second. This is carefulness in reverse, like checking the
bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional
Commission was to restrict the powers of the Presidency and so prevent
the recurrence of another dictatorship. Among the many measures taken
was the restoration of the Commission on Appointments to check the
appointing power which had been much abused by President Marcos.
We are now told that even as this body was revived to limit
appointments, the scope of its original authority has itself been limited in
the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the
Idea expressed in the first sentence and simply mentions the other
officers appointed by the President who are also subject to confirmation.
The second sentence is the later expression of the will of the framers and
so must be interpreted as complementing the rule embodied in the first
sentence or, if necessary, reversing the original intention to exempt
bureau directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my humble
conjecture on the meaning of Section 16 is as arguable, at least, as the
suppositions of the majority. We read and rely on the same records. At
any rate, this view is more consistent with the general purpose of Article
VII, which, to repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520,
Volume II, of the Record of the Constitutional Convention:
Mr. Foz: Madam President, this
is the third proposed
amendment on page 7, line 28,
1 propose to put a period (.)
after 'captain' and on line 29,
delete 'and all' and substitute it
with HE SHALL ALSO
APPOINT ANY.
Mr. Regalado: Madam
President, the Committee
accepts the proposed
amendment because it makes it
clear that those other officers
mentioned therein do not have
to be confirmed by the
Commission on Appointments.
However, the records do not show what particular part of Section 16 the
committee chairman was referring to, and a reading in its entirety of this
particular debate will suggest that the body was considering
the first sentence of the said section, which I reiterate is not the
controversial provision. In any case, although the excerpt shows that the
proposed amendment of Commissioner Foz was accepted by the
committee, it is not reflected, curiously enough, in the final version of
Section 16 as a perusal thereof will readily reveal. Whether it was deleted
later in the session or reworded by the style committee or otherwise
replaced for whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional Commission are
merely extrinsic aids and are at best persuasive only and not necessarily
conclusive. Interestingly, some quarters have observed that the
Congress is not prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the debates
on this matter in support of this supposition. It is true enough that there
was such a consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16 of Article
VII. Which should prevail then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but
there is no question either that it is not absolute or unlimited. The rule re-
established by the new Constitution is that the power requires
confirmation by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and balances. I
submit it is the exception to this rule, and not the rule, that should be
strictly construed.
In my view, the only officers appointed by the President who are not
subject to confirmation by the Commission on Appointments are (1) the
members of the judiciary and the Ombudsman and his deputies, who are
nominated by the Judicial and Bar Council; (2) the Vice-President when
he is appointed to the Cabinet; and (3) "other officers lower in rank," but
only when their appointment is vested by law in the President alone. It is
clear that this enumeration does not include the respondent
Commissioner of Customs who, while not covered by the first sentence
of Section 16, comes under the second sentence thereof as I would
interpret it and so is also subject to confirmation.
I vote to grant the petition.
Separate Opinions
TEEHANKEE, C.J., concurring:
The Court has deemed it necessary and proper, in consonance with its
constitutional duty, to adjudicate promptly the issue at bar and to rule that
the direct appointment of respondent Salvador Mison as Commissioner
of the Bureau of Customs (without need of submitting a prior nomination
to the Commission on Appointments and securing its confirmation) is
valid and in accordance with the President's constitutional authority to so
appoint officers of the Government as defined in Article VII, section 16 of
the 1987 Constitution. The paramount public interest and the exigencies
of the public service demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor
deal with the Manifestation of December 1, 1987 filed by the intervenor
that Senate Bill No. 137 entitled "An Act Providing For the Confirmation
By the Commission on Appointments of All Nominations and
Appointments Made by the President of the Philippines" was passed on
23 October 1987 and was "set for perusal by the House of
Representatives. " This omission has been deliberate. The Court has
resolved the case at bar on the basis of the issues joined by the parties.
The contingency of approval of the bill mentioned by intervenor clearly
has no bearing on and cannot affect retroactively the validity of the direct
appointment of respondent Mison and other appointees similarly situated
as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor-
Santiago." The Court does not deal with constitutional questions in the
abstract and without the same being properly raised before it in a
justiciable case and after thorough discussion of the various points of
view that would enable it to render judgment after mature deliberation. As
stressed at the hearing of December 8, 1987, any discussion of the
reported bill and its validity or invalidity is premature and irrelevant and
outside the scope of the issues resolved in the case at bar.
MELENCIO-HERRERA, J., concurring:
I concur with the majority opinion and with the concurring opinion of
Justice Sarmiento, and simply wish to add my own reading of the
Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution provides:
The President shall nominate and, with the consent
of the Commission on Appointments, appoint the
heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers whose appointments are
vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint.
The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in
the courts, or in the heads of the departments,
agencies, commissions or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress (Emphasis and 1st
three paragraphings, supplied).
The difference in language used is significant. Under the first sentence it
is clear that the President "nominates" and with the consent of the
Commission on Appointments "appoints" the officials enumerated. The
second sentence, however, significantly uses only the term "appoint" all
other officers of the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized by law to
appoint. Deliberately eliminated was any reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the
appointees mentioned in the second sentence from confirmation by the
Commission on Appointments is, to my mind, quite clear. So also is the
fact that the term "appoint" used in said sentence was not meant to
include the three distinct acts in the appointing process, namely,
nomination, appointment, and commission. For if that were the intent, the
same terminologies in the first sentence could have been easily
employed.
There should be no question either that the participation of the
Commission on Appointments in the appointment process has been
deliberately decreased in the 1987 Constitution compared to that in the
1935 Constitution, which required that all presidential appointments be
with the consent of the Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some
incongruous situations as stressed in the dissenting opinion of Justice
Cruz. The remedy therefor addresses itself to the future. The task of
constitutional construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M. Tuason & Co.,
Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970,
31 SCRA 413). And the primary source from which to ascertain
constitutional intent is the language of the Constitution itself.
SARMIENTO, J., concurring:
I concur. It is clear from the Constitution itself that not all Presidential
appointments are subject to prior Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the
consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel
or naval captain, and other officers whose
appointments are vested in him in this Constitution.
He shall also appoint all other officers of the
Government whose appointments are not otherwise
provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or
boards.
The President shall have the power to make
appointments during recess of the Congress,
whether voluntary or compulsory, but such
appointment shall be effective only until disapproval
by the Commission on Appointments or until the next
adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those
grouped under the first sentence are required to undergo a consenting
process. This is a significant departure from the procedure set forth in the
1935 Charter:
(3) The President shall nominate and with the
consent of the Commission on Appointments, shall
appoint the heads of the executive departments and
bureaus, officers of the Army from the rank of
colonel, of the Navy and Air Forces from the rank of
captain to commander, and all other officers of the
Government whose appointments are not herein
otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of
departments. 2
under which, as noted by the majority, "almost all presidential
appointments required the consent (confirmation) of the Commission on
Appointments. 3 As far as the present Charter is concerned, no extrinsic
aid is necessary to ascertain its meaning. Had its framers intended
otherwise, that is to say, to require all Presidential appointments
clearance from the Commission on Appointments, they could have
simply reenacted the Constitution's 1935 counterpart. 4
I agree that the present Constitution classifies four types of appointments
that the President may make: (1) appointments of heads of executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain, and
those of other officers whose appointments are vested in him under the
Constitution, including the regular members of the Judicial and Bar
Council, 5 the Chairman and Commissioners of the Civil Service
Commission, 6 the Chairman and Commissioners of the Commission on
Elections, 7and the Chairman and Commissioners of the Commission on
Audit; 8 (2) those officers whose appointments are not otherwise provided
for by law; (3) those whom he may be authorized by law to appoint; and
(4) officers lower in rank whose appointments the Congress may vest in
the President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the
fundamental law have written a "rather confused Constitution" 9 with
respect, to a large extent, to its other parts, and with respect, to a certain
extent, to the appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's appointment
needs confirmation whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the
Charter is not for us to judge. That is a question addressed to the
electorate, and who, despite those "eccentricities," have stamped their
approval on that Charter. "The Court," avers the majority, "will thus
construe the applicable constitutional provisions, not in accordance with
how the executive or the legislative department may want them
construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an
exercise of executive power. 11 The fact that the Constitution has
provided for a Commission on Appointments does not minimize the
extent of such a power, much less, make it a shared executive-legislative
prerogative. In Concepcion v. Paredes, we stated in no uncertain terms
that "[a]ppointment to office is intrinsically an executive act involving the
exercise of discretion." 12 Springer v. Philippine Islands 13 on the other
hand, underscored the fact that while the legislature may create a public
office, it cannot name the official to discharge the functions appurtenant
thereto. And while it may prescribe the qualifications therefor, it cannot
circumscribe such qualifications, which would unduly narrow the
President's choice. In that event, it is as if it is the legislature itself
conferring the appointment.
Thus, notwithstanding the existence of a Commission on Appointments,
the Chief Executive retains his supremacy as the appointing authority. In
case of doubt, the same should be resolved in favor of the appointing
power.
It is the essence of a republican form of government, like ours, that
"[e]ach department of the government has exclusive cognizance of
matters within its jurisdiction." 14 But like all genuine republican systems,
no power is absolutely separate from the other. For republicanism
operates on a process of checks and balances as well, not only to guard
against excesses by one branch, but more importantly, "to secure
coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments
acts as a restraint against abuse of the appointing authority, but not as a
means with which to hold the Chief Executive hostage by a possibly
hostile Congress, an unhappy lesson as the majority notes, in our history
under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on
appointments. The prohibition, for instance, against the enactment of a
bill of attainder operates as a bar against legislative encroachment upon
both judicial and executive domains, since the determination of guilt and
punishment of the guilty address judicial and executive functions,
respective y. 16
And then, the cycle of checks and balances pervading the Constitution is
a sword that cuts both ways. In a very real sense, the power of
appointment constitutes a check against legislative authority. In Springer
v. Philippine Islands, 17we are told that "Congress may not control the
law enforcement process by retaining a power to appoint the individual
who will execute the laws." 18 This is so, according to one authority,
because "the appointments clause, rather than 'merely dealing with
etiquette or protocol,' seeks to preserve an executive check upon
legislative authority in the interest of avoiding an undue concentration of
power in Congress. " 19
The President has sworn to "execute [the] laws. 20 For that matter, no
other department of the Government may discharge that function, least of
all Congress. Accordingly, a statute conferring upon a commission the
responsibility of administering that very legislation and whose members
have been determined therein, has been held to be repugnant to the
Charter. 21 Execution of the laws, it was held, is the concern of the
President, and in going about this business, he acts by himself or through
his men and women, and no other.
The President, on the other hand, cannot remove his own appointees
"except for cause provided by law." 22Parenthetically, this represents a
deviation from the rule prevailing in American jurisdiction that "the power
of removal . . . [is] incident to the power of appointment, 23 although this
has since been tempered in a subsequent case, 24 where it was held that
the President may remove only "purely executive officers, 25 that is,
officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court
held that the President may remove incumbents of offices confidential in
nature, but we likewise made clear that in such a case, the incumbent is
not "removed" within the meaning of civil service laws, but that his term
merely expires.
It is to be observed, indeed, that the Commission on Appointments, as
constituted under the 1987 Constitution, is itself subject to some check.
Under the Charter, "[tlhe Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their
submission. 27 Accordingly, the failure of the Commission to either
consent or not consent to the appointments preferred before it within the
prescribed period results in a de facto confirmation thereof
Certainly, our founding fathers have fashioned a Constitution where the
boundaries of power are blurred by the predominance of checks and
counterchecks, yet amid such a rubble of competing powers emerges a
structure whose parts are at times jealous of each other, but which are
ultimately necessary in assuring a dynamic, but stable, society. As Mr.
Justice Holmes had so elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not
establish and divide fields of black and white. Even
the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to
the other. ... When we come to the fundamental
distinctions it is still more obvious that they must be
received with a certain latitude or our government
could not go on.
 xxx xxx xxx
It does not seem to need argument to show that
however we may disguise it by veiling words we do
not and cannot carry out the distinction between
legislative and executive action with mathematical
precision and divide the branches into watertight
compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the
Constitution requires. 28
xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these
"checks and counterpoises, which Newton might
readily have recognized as suggestive of the
mechanism of the heavens," (W. Wilson,
Constitutional Government in the United States 56
(1908)] can represent only the scaffolding of a far
more subtle "vehicle of life (Id. at 192: "The
Constitution cannot be regarded as a mere legal
document, to be read as a will or a contract would
be. It must, of the necessity of the case, be a vehicle
of life.") The great difficulty of any theory less rich,
Woodrow Wilson once warned, "is that government
is not a machine, but a living thing. It falls, not under
the theory of the universe, but under the theory of
organic life. It is accountable to Darwin, not to
Newton. It is . . . shaped to its functions by the sheer
pressure of life. No living thing can have its organs
offset against each other as checks, and five." (Id. at
56.) Yet because no complex society can have its
centers of power not "offset against each other as
checks," and resist tyranny, the Model of Separated
and Divided Powers offers continuing testimony to
the undying dilemmas of progress and justice. 29
xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973
Constitution deliberately denied the legislature (the National Assembly
under the 1971 draft Constitution) the power to check executive
appointments, and hence, granted the President absolute appointing
power. 30 As a delegate to, and Vice-President of, the ill-fated 1971
Constitutional Convention, and more so as the presiding officer of most
of its plenary session, I am aware that the Convention did not provide for
a commission on appointments on the theory that the Prime Minister, the
head of the Government and the sole appointing power, was himself a
member of parliament. For this reason, there was no necessity for a
separate body to scrutinize his appointees. But should such appointees
forfeit the confidence of the assembly, they are, by tradition, required to
resign, unless they should otherwise have been removed by the Prime
Minister. 31 In effect, it is parliament itself that "approves" such
appointments. Unfortunately, supervening events forestalled our
parliamentary experiment, and beginning with the 1976 amendments and
some 140 or so amendments thereafter, we had reverted to the
presidential form, 32 without provisions for a commission on
appointments.
In fine, while Presidential appointments, under the first sentence of
Section 16, of Article VII of the present Constitution, must pass prior
Congressional scrutiny, it is a test that operates as a mere safeguard
against abuse with respect to those appointments. It does not accord
Congress any more than the power to check, but not to deny, the Chief
Executive's appointing power or to supplant his appointees with its own.
It is but an exception to the rule. In limiting the Commission's scope of
authority, compared to that under the 1935 Constitution, I believe that the
1987 Constitution has simply recognized the reality of that exception.
GUTIERREZ, JR., J., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution,
as the supreme law of the land, should never have any of its provisions
interpreted in a manner that results in absurd or irrational consequences.
The Commission on Appointments is an important constitutional body
which helps give fuller expression to the principles inherent in our
presidential system of government. Its functions cannot be made
innocuous or unreasonably diminished to the confirmation of a limited
number of appointees. In the same manner that the President shares in
the enactment of laws which govern the nation, the legislature, through
its Commission on Appointments, gives assurance that only those who
can pass the scrutiny of both the President and Congress will help run
the country as officers holding high appointive positions. The third
sentence of the first paragraph — " ... The Congress may, by law, vest
the appointment of other officers lower in rank in the President alone, in
the courts, or in the heads of departments, agencies, commissions, or
boards." — specifies only "officers lower in rank" as those who may, by
law, be appointed by the President alone. If as expounded in the majority
opinion, only the limited number of officers in the first sentence of Section
16 require confirmation, the clear intent of the third sentence is lost. In
fact both the second and third sentences become meaningless or
superfluous. Superfluity is not to be read into such an important part of
the Constitution.
I agree with the intervenor that all provisions of the Constitution on
appointments must be read together. In providing for the appointment of
members of the Supreme Court and judges of lower courts (Section 9,
Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the
Vice President as a member of cabinet (Section 3, Article VII) and, of
course, those who by law the President alone may appoint, the
Constitution clearly provides no need for confirmation. This can only
mean that all other appointments need confirmation. Where there is no
need for confirmation or where there is an alternative process to
confirmation, the Constitution expressly so declares. Without such a
declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on
Appointments because the government it set up was supposed to be a
parliamentary one. The Prime Minister, as head of government, was
constantly accountable to the legislature. In our presidential system, the
interpretation which Justice Cruz and myself espouse, is more
democratic and more in keeping with the system of government
organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly
as follows: Confirmation is required only for the officers mentioned in the
first sentence of Section 16, to wit: (1) the heads of the executive
departments; (2) ambassadors, other public ministers and consuls; (3)
officers of the armed forces from the rank of colonel or naval captain; and
(4) other officers whose appointments are vested in the President in the
Constitution. No confirmation is required under the second sentence for
(1) all other officers whose appointments are not otherwise provided for
by law, and (2) those whom the President may be authorized by law to
appoint. Neither is confirmation required by the third sentence for those
other officers lower in rank whose appointment is vested by law in the
President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who
is not the head of his department, does not have to be confirmed by the
Commission on Appointments, but the ordinary consul, who is under his
jurisdiction, must be confirmed. The colonel is by any standard lower in
rank than the Chairman of the Commission on Human Rights, which was
created by the Constitution; yet the former is subject to confirmation but
the latter is not because he does not come under the first sentence. The
Special Prosecutor, whose appointment is not vested by the Constitution
in the President, is not subject to confirmation under the first sentence,
and neither are the Governor of the Central Bank and the members of
the Monetary Board because they fall under the second sentence as
interpreted by the majority opinion. Yet in the case of the multi-sectoral
members of the regional consultative commission, whose appointment is
vested by the Constitution in the President under Article X, Section 18,
their confirmation is required although their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they
would lead to the absurd consequences we should avoid in interpreting
the Constitution.
There is no question that bureau directors are not required to be
confirmed under the first sentence of Section 16, but that is not the
provision we ought to interpret. It is the second sentence we must
understand for a proper resolution of the issues now before us.
Significantly, although there was a long discussion of the first sentence in
the Constitutional Commission, there is none cited on the second
sentence either in the Solicitor-General's comment or in the majority
opinion. We can therefore only speculate on the correct interpretation of
this provision in the light of the first and third sentences of Section 16 or
by reading this section in its totality.
The majority opinion says that the second sentence is the exception to
the first sentence and holds that the two sets of officers specified therein
may be appointed by the President without the concurrence of the
Commission on Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably were not
envisioned by the framers.
One may wonder why it was felt necessary to include the second
sentence at all, considering the majority opinion that the enumeration in
the first sentence of the officers subject to confirmation is exclusive on
the basis of expressio unius est exclusio alterius. If that be so, the first
sentence would have been sufficient by itself to convey the Idea that
all other appointees of the President would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence
do not need confirmation, it was still felt necessary to provide in the third
sentence that the appointment of the other officers lower in rank will also
not need confirmation as long as their appointment is vested by law in
the President alone. The third sentence would appear to be superfluous,
too, again in view of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in
the President alone the appointment of those other officers lower in rank
mentioned in the third sentence? Conformably to the language thereof,
these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the
second sentence will not.
The respondent cites the following exchange reported in page 520,
Volume II, of the Record of the Constitutional Convention:
Mr. Foz: Madam President, this
is the third proposed
amendment on page 7, line 28,
1 propose to put a period (.)
after 'captain' and on line 29,
delete 'and all' and substitute it
with HE SHALL ALSO
APPOINT ANY.
Mr. Regalado: Madam
President, the Committee
accepts the proposed
amendment because it makes it
clear that those other officers
mentioned therein do not have
to be confirmed by the
Commission on Appointments.
However, the records do not show what particular part of Section 16 the
committee chairman was referring to, and a reading in its entirety of this
particular debate will suggest that the body was considering
the first sentence of the said section, which I reiterate is not the
controversial provision. In any case, although the excerpt shows that the
proposed amendment of Commissioner Foz was accepted by the
committee, it is not reflected, curiously enough, in the final version of
Section 16 as a perusal thereof will readily reveal. Whether it was deleted
later in the session or reworded by the style committee or otherwise
replaced for whatever reason will need another surmise on this rather
confused Constitution.
I need only add that the records of the Constitutional Commission are
merely extrinsic aids and are at best persuasive only and not necessarily
conclusive. Interestingly, some quarters have observed that the
Congress is not prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the debates
on this matter in support of this supposition. It is true enough that there
was such a consensus, but it is equally true that this thinking is not at all
expressed, or even only implied, in the language of Section 16 of Article
VII. Which should prevail then the provision as worded or the debates?

It is not disputed that the power of appointment is executive in nature, but

Thus, a regional director in the Department of Labor and the labor
there is no question either that it is not absolute or unlimited. The rule re-
arbiters, as officers lower in rank than the bureau director, will have to be
established by the new Constitution is that the power requires
confirmed if the Congress does not vest their appointment in the
confirmation by the Commission on Appointments as a restraint on
President alone under the third sentence. On the other hand, their
presidential excesses, in line with the system of checks and balances. I
superior, the bureau director himself, will not need to be confirmed
submit it is the exception to this rule, and not the rule, that should be
because, according to the majority opinion, he falls not under the first
strictly construed.
sentence but the second. This is carefulness in reverse, like checking the
bridesmaids but forgetting the bride.
In my view, the only officers appointed by the President who are not
subject to confirmation by the Commission on Appointments are (1) the
It must be borne in mind that one of the purposes of the Constitutional
members of the judiciary and the Ombudsman and his deputies, who are
Commission was to restrict the powers of the Presidency and so prevent
nominated by the Judicial and Bar Council; (2) the Vice-President when
the recurrence of another dictatorship. Among the many measures taken
he is appointed to the Cabinet; and (3) "other officers lower in rank," but
was the restoration of the Commission on Appointments to check the
only when their appointment is vested by law in the President alone. It is
appointing power which had been much abused by President Marcos.
clear that this enumeration does not include the respondent
We are now told that even as this body was revived to limit
Commissioner of Customs who, while not covered by the first sentence
appointments, the scope of its original authority has itself been limited in
of Section 16, comes under the second sentence thereof as I would
the new Constitution. I have to disagree.
interpret it and so is also subject to confirmation.

My own reading is that the second sentence is but a continuation of the

I vote to grant the petition
Idea expressed in the first sentence and simply mentions the other
officers appointed by the President who are also subject to confirmation.
The second sentence is the later expression of the will of the framers and
so must be interpreted as complementing the rule embodied in the first
sentence or, if necessary, reversing the original intention to exempt
bureau directors from confirmation. I repeat that there were no debates
on this matter as far as I know, which simply means that my humble
conjecture on the meaning of Section 16 is as arguable, at least, as the
suppositions of the majority. We read and rely on the same records. At
any rate, this view is more consistent with the general purpose of Article
VII, which, to repeat, was to reduce the powers of the Presidency.
 555555555
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 91649             May 14, 1991
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES
MARANAN AND LORENZO SANCHEZ,petitioners, 
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION
(PAGCOR), respondent.
H.B. Basco & Associates for petitioners.
Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR — responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant
petition seeking to annul the Philippine Amusement and Gaming
Corporation (PAGCOR) Charter — PD 1869, because it is allegedly
contrary to morals, public policy and order, and because —
A. It constitutes a waiver of a right prejudicial to a third person
with a right recognized by law. It waived the Manila City
government's right to impose taxes and license fees, which is
recognized by law;
B. For the same reason stated in the immediately preceding
paragraph, the law has intruded into the local government's
right to impose local taxes and license fees. This, in
contravention of the constitutionally enshrined principle of local
autonomy;
C. It violates the equal protection clause of the constitution in
that it legalizes PAGCOR — conducted gambling, while most
other forms of gambling are outlawed, together with
prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away
from monopolistic and crony economy, and toward free
enterprise and privatization. (p. 2, Amended Petition; p.
7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is
contrary to the declared national policy of the "new restored democracy"
and the people's will as expressed in the 1987 Constitution. The decree
is said to have a "gambling objective" and therefore is contrary to
Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2)
of Article XIV, of the present Constitution (p. 3, Second Amended
Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing
lawyers (petitioner Basco being also the Chairman of the Committee on
Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was
created by virtue of P.D. 1067-A dated January 1, 1977 and was granted
a franchise under P.D. 1067-B also dated January 1, 1977 "to establish,
operate and maintain gambling casinos on land or water within the
territorial jurisdiction of the Philippines." Its operation was originally
conducted in the well known floating casino "Philippine Tourist." The
operation was considered a success for it proved to be a potential source
of revenue to fund infrastructure and socio-economic projects, thus, P.D.
1399 was passed on June 2, 1978 for PAGCOR to fully attain this
objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869
to enable the Government to regulate and centralize all games of chance
authorized by existing franchise or permitted by law, under the following
declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the
policy of the State to centralize and integrate all games of
chance not heretofore authorized by existing franchises or
permitted by law in order to attain the following objectives:
(a) To centralize and integrate the right and authority to
operate and conduct games of chance into one corporate
entity to be controlled, administered and supervised by the
Government.
(b) To establish and operate clubs and casinos, for amusement
and recreation, including sports gaming pools, (basketball,
football, lotteries, etc.) and such other forms of amusement
and recreation including games of chance, which may be
allowed by law within the territorial jurisdiction of the
Philippines and which will: (1) generate sources of additional
revenue to fund infrastructure and socio-civic projects, such as
flood control programs, beautification, sewerage and sewage
projects, Tulungan ng Bayan Centers, Nutritional Programs,
Population Control and such other essential public services; (2)
create recreation and integrated facilities which will expand
and improve the country's existing tourist attractions; and (3)
minimize, if not totally eradicate, all the evils, malpractices and
corruptions that are normally prevalent on the conduct and
operation of gambling clubs and casinos without direct
government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over
the Philippines. Under its Charter's repealing clause, all laws, decrees,
executive orders, rules and regulations, inconsistent therewith, are
accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government
revenue, next to the Bureau of Internal Revenue and the Bureau of
Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of
franchise tax, government's income share, the President's Social Fund
and Host Cities' share. In addition, PAGCOR sponsored other socio-
cultural and charitable projects on its own or in cooperation with various
governmental agencies, and other private associations and
organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2
Billion. As of December 31, 1989, PAGCOR was employing 4,494
employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They
allege that the same is "null and void" for being "contrary to morals,
public policy and public order," monopolistic and tends toward "crony
economy", and is violative of the equal protection clause and local
autonomy as well as for running counter to the state policies enunciated
in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13
(Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and
Section 2 (Educational Values) of Article XIV of the 1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough
scrutiny and the most deliberate consideration by the Court, involving as
it does the exercise of what has been described as "the highest and most
delicate function which belongs to the judicial department of the
government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146
SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-
equal and coordinate branch of the government We need not be
reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption
must be indulged in favor of its constitutionality. This is not to say that We
approach Our task with diffidence or timidity. Where it is clear that the
legislature or the executive for that matter, has over-stepped the limits of
its authority under the constitution, We should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the offending statute (Lozano
v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the
Court thru Mr. Justice Zaldivar underscored the —
. . . thoroughly established principle which must be followed in
all cases where questions of constitutionality as obtain in the
instant cases are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute alleging
unconstitutionality must prove its invalidity beyond a
reasonable doubt; that a law may work hardship does not
render it unconstitutional; that if any reasonable basis may be
conceived which supports the statute, it will be upheld and the
challenger must negate all possible basis; that the courts are
not concerned with the wisdom, justice, policy or expediency of
a statute and that a liberal interpretation of the constitution in
favor of the constitutionality of legislation should be adopted.
(Danner v. Hass, 194 N.W. 2nd534, 539; Spurbeck v. Statton,
106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v.
Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on
Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v.
Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens
Alliance for Consumer Protection v. Energy Regulatory Board,
162 SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are
questioning the legal personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and
in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws and that they
have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this
petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc.
v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as
applied in the cases before us, We hold that the same is
satisfied by the petitioners and intervenors because each of
them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. And
even if, strictly speaking they are not covered by the definition,
it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing
and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and
taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although
they were involving only an indirect and general interest shared
in common with the public. The Court dismissed the objection
that they were not proper parties and ruled that "the
transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing
aside, if we must technicalities of procedure." We have since
then applied the exception in many other cases. (Association
of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian
Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the
substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited.
But the prohibition of gambling does not mean that the Government
cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has
been defined as the "state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare."
(Edu v. Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an
imposition or restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been,
purposely, veiled in general terms to underscore its all-comprehensive
embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163
SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to
anticipate the future where it could be done, provides enough room for an
efficient and flexible response to conditions and circumstances thus
assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does
not owe its origin to the charter. Along with the taxing power and eminent
domain, it is inborn in the very fact of statehood and sovereignty. It is a
fundamental attribute of government that has enabled it to perform the
most vital functions of governance. Marshall, to whom the expression has
been credited, refers to it succinctly as the plenary power of the state "to
govern its citizens". (Tribe, American Constitutional Law, 323, 1978). The
police power of the State is a power co-extensive with self-protection and
is most aptly termed the "law of overwhelming necessity." (Rubi v.
Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential,
insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil.
136) It is a dynamic force that enables the state to meet the agencies of
the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to
"regulate and centralize thru an appropriate institution all games of
chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating and
centralizing gambling operations in one corporate entity — the PAGCOR,
was beneficial not just to the Government but to society in general. It is a
reliable source of much needed revenue for the cash strapped
Government. It provided funds for social impact projects and subjected
gambling to "close scrutiny, regulation, supervision and control of the
Government" (4th Whereas Clause, PD 1869). With the creation of
PAGCOR and the direct intervention of the Government, the evil
practices and corruptions that go with gambling will be minimized if not
totally eradicated. Public welfare, then, lies at the bottom of the
enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the
City of Manila to impose taxes and legal fees; that the exemption clause
in P.D. 1869 is violative of the principle of local autonomy. They must be
referring to Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as
the franchise holder from paying any "tax of any kind or form, income or
otherwise, as well as fees, charges or levies of whatever nature, whether
National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of
any kind or form, income or otherwise as well as fees, charges
or levies of whatever nature, whether National or Local, shall
be assessed and collected under this franchise from the
Corporation; nor shall any form or tax or charge attach in any
way to the earnings of the Corporation, except a franchise tax
of five (5%) percent of the gross revenues or earnings derived
by the Corporation from its operations under this franchise.
Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies,
fees or assessments of any kind, nature or description, levied,
established or collected by any municipal, provincial or national
government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following
reasons:
(a) The City of Manila, being a mere Municipal corporation has no
inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City
of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7
SCRA 643). Thus, "the Charter or statute must plainly show an intent to
confer that power or the municipality cannot assume it" (Medina v. City of
Baguio, 12 SCRA 62). Its "power to tax" therefore must always yield to a
legislative act which is superior having been passed upon by the state
itself which has the "inherent power to tax" (Bernas, the Revised [1973]
Philippine Constitution, Vol. 1, 1983 ed. p. 445).
(b) The Charter of the City of Manila is subject to control by Congress. It
should be stressed that "municipal corporations are mere creatures of
Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which
has the power to "create and abolish municipal corporations" due to its
"general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo
v. Orandia, 5 SCRA 541). Congress, therefore, has the power of control
over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950).
And if Congress can grant the City of Manila the power to tax certain
matters, it can also provide for exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on gambling, has
long been revoked. As early as 1975, the power of local governments to
regulate gambling thru the grant of "franchise, licenses or permits" was
withdrawn by P.D. No. 771 and was vested exclusively on the National
Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding,
the authority of chartered cities and other local governments to
issue license, permit or other form of franchise to operate,
maintain and establish horse and dog race tracks, jai-alai and
other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain
and establish, horse and dog race tracks, jai-alai and other
forms of gambling shall be issued by the national government
upon proper application and verification of the qualification of
the applicant . . .
Therefore, only the National Government has the power to issue
"licenses or permits" for the operation of gambling. Necessarily, the
power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the
National Government. PAGCOR is a government owned or controlled
corporation with an original charter, PD 1869. All of its shares of stocks
are owned by the National Government. In addition to its corporate
powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers
thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a
Registry of the affiliated entities, and shall exercise all the
powers, authority and the responsibilities vested in the
Securities and Exchange Commission over such affiliating
entities mentioned under the preceding section, including, but
not limited to amendments of Articles of Incorporation and By-
Laws, changes in corporate term, structure, capitalization and
other matters concerning the operation of the affiliated entities,
the provisions of the Corporation Code of the Philippines to the
contrary notwithstanding, except only with respect to original
incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos.
The latter role is governmental, which places it in the category of an
agency or instrumentality of the Government. Being an instrumentality of
the Government, PAGCOR should be and actually is exempt from local
taxes. Otherwise, its operation might be burdened, impeded or subjected
to control by a mere Local government.
The states have no power by taxation or otherwise, to retard,
impede, burden or in any manner control the operation of
constitutional laws enacted by Congress to carry into execution
the powers vested in the federal government. (MC Culloch v.
Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National
Government over local governments.
Justice Holmes, speaking for the Supreme Court, made
reference to the entire absence of power on the part of the
States to touch, in that way (taxation) at least, the
instrumentalities of the United States (Johnson v. Maryland,
254 US 51) and it can be agreed that no state or political
subdivision can regulate a federal instrumentality in such a
way as to prevent it from consummating its federal
responsibilities, or even to seriously burden it in the
accomplishment of them. (Antieau, Modern Constitutional Law,
Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable
activities or enterprise using the power to tax as "a tool for regulation"
(U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to
destroy" (Mc Culloch v. Maryland, supra) cannot be allowed to defeat an
instrumentality or creation of the very entity which has the inherent power
to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the
Constitution will be violated by P.D. 1869. This is a pointless argument.
Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to
create its own source of revenue and to levy taxes, fees, and
other charges subject to such guidelines and limitation as the
congress may provide, consistent with the basic policy on local
autonomy. Such taxes, fees and charges shall accrue
exclusively to the local government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always
subject to "limitations" which Congress may provide by law. Since PD
1869 remains an "operative" law until "amended, repealed or revoked"
(Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains as
an exception to the exercise of the power of local governments to impose
taxes and fees. It cannot therefore be violative but rather is consistent
with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution
simply means "decentralization" (III Records of the 1987 Constitutional
Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not
make local governments sovereign within the state or an "imperium in
imperio."
Local Government has been described as a political
subdivision of a nation or state which is constituted by law and
has substantial control of local affairs. In a unitary system of
government, such as the government under the Philippine
Constitution, local governments can only be an intra sovereign
subdivision of one sovereign nation, it cannot be
an imperium in imperio. Local government in such a system
can only mean a measure of decentralization of the function of
government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be
delegated to local government units remains a matter of policy, which
concerns wisdom. It is therefore a political question. (Citizens Alliance for
Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise
dealing with gambling is a State concern and hence, it is the sole
prerogative of the State to retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative
grant or express charter power is generally necessary to
empower the local corporation to deal with the subject. . . . In
the absence of express grant of power to enact, ordinance
provisions on this subject which are inconsistent with the state
laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-
Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah
You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA
 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis
supplied)
Petitioners next contend that P.D. 1869 violates the equal protection
clause of the Constitution, because "it legalized PAGCOR — conducted
gambling, while most gambling are outlawed together with prostitution,
drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The
petitioners' posture ignores the well-accepted meaning of the clause
"equal protection of the laws." The clause does not preclude
classification of individuals who may be accorded different treatment
under the law as long as the classification is not unreasonable or
arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to
operate in equal force on all persons or things to be conformable to
Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No.
89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from
establishing classes of individuals or objects upon which different rules
shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
require situations which are different in fact or opinion to be treated in law
as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is
violative of the equal protection is not clearly explained in the petition.
The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries
and races (RA 1169 as amended by B.P. 42) are legalized under certain
conditions, while others are prohibited, does not render the applicable
laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not
to be overthrown because there are other instances to which it
might have been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not
mean that all occupations called by the same name must be
treated the same way; the state may do what it can to prevent
which is deemed as evil and stop short of those cases in which
harm to the few concerned is not less than the harm to the
public that would insure if the rule laid down were made
mathematically exact. (Dominican Hotel v. Arizona, 249 US
2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of
the Cory Government away from monopolies and crony economy and
toward free enterprise and privatization" suffice it to state that this is not a
ground for this Court to nullify P.D. 1869. If, indeed, PD 1869 runs
counter to the government's policies then it is for the Executive
Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only
declare what the law is and not what the law should
be.1âwphi1 Under our system of government, policy issues are
within the domain of the political branches of government and
of the people themselves as the repository of all state power.
(Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when
public interest so requires. No combinations in restraint of
trade or unfair competition shall be allowed. (Art. XII, National
Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not
necessarily prohibited by the Constitution. The state must still decide
whether public interest demands that monopolies be regulated or
prohibited. Again, this is a matter of policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality
Dignity) 12 (Family) and 13 (Role of Youth) of Article II; Section 13
(Social Justice) of Article XIII and Section 2 (Educational Values) of
Article XIV of the 1987 Constitution, suffice it to state also that these are
merely statements of principles and, policies. As such, they are basically
not self-executing, meaning a law should be passed by Congress to
clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to
be self-executing principles ready for enforcement through the
courts. They were rather directives addressed to the executive
and the legislature. If the executive and the legislature failed to
heed the directives of the articles the available remedy was not
judicial or political. The electorate could express their
displeasure with the failure of the executive and the legislature
through the language of the ballot. (Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong
Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v.
Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore,
for PD 1869 to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution, not merely a doubtful and
equivocal one. In other words, the grounds for nullity must be clear and
beyond reasonable doubt. (Peralta v. Comelec, supra) Those who
petition this Court to declare a law, or parts thereof, unconstitutional must
clearly establish the basis for such a declaration. Otherwise, their petition
must fail. Based on the grounds raised by petitioners to challenge the
constitutionality of P.D. 1869, the Court finds that petitioners have failed
to overcome the presumption. The dismissal of this petition is therefore,
inevitable. But as to whether P.D. 1869 remains a wise legislation
considering the issues of "morality, monopoly, trend to free enterprise,
privatization as well as the state principles on social justice, role of youth
and educational values" being raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 521 —
Presidential Decree No. 1956, as amended by Executive Order
No. 137 has, in any case, in its favor the presumption of
validity and constitutionality which petitioners Valmonte and the
KMU have not overturned. Petitioners have not undertaken to
identify the provisions in the Constitution which they claim to
have been violated by that statute. This Court, however, is not
compelled to speculate and to imagine how the assailed
legislation may possibly offend some provision of the
Constitution. The Court notes, further, in this respect that
petitioners have in the main put in question the wisdom, justice
and expediency of the establishment of the OPSF, issues
which are not properly addressed to this Court and which this
Court may not constitutionally pass upon. Those issues should
be addressed rather to the political departments of
government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and
this is precisely so when the gambling resorted to is excessive. This
excessiveness necessarily depends not only on the financial resources of
the gambler and his family but also on his mental, social, and spiritual
outlook on life. However, the mere fact that some persons may have lost
their material fortunes, mental control, physical health, or even their lives
does not necessarily mean that the same are directly attributable to
gambling. Gambling may have been the antecedent, but certainly not
necessarily the cause. For the same consequences could have been
preceded by an overdose of food, drink, exercise, work, and even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin,
Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Separate Opinions
PADILLA, J., concurring:

I concur in the result of the learned decision penned by my brother Mr.

Justice Paras. This means that I agree with the decision insofar as it
holds that the prohibition, control, and regulation of the entire activity
known as gambling properly pertain to "state policy." It is, therefore, the
political departments of government, namely, the legislative and the
executive that should decide on what government should do in the entire
area of gambling, and assume full responsibility to the people for such
policy.

The courts, as the decision states, cannot inquire into the wisdom,
morality or expediency of policies adopted by the political departments of
government in areas which fall within their authority, except only when
such policies pose a clear and present danger to the life, liberty or
property of the individual. This case does not involve such a factual
situation.

However, I hasten to make of record that I do not subscribe to gambling

in any form. It demeans the human personality, destroys self-confidence
and eviscerates one's self-respect, which in the long run will corrode
whatever is left of the Filipino moral character. Gambling has wrecked
and will continue to wreck families and homes; it is an antithesis to
individual reliance and reliability as well as personal industry which are
the touchstones of real economic progress and national development.

Gambling is reprehensible whether maintained by government or

privatized. The revenues realized by the government out of "legalized"
gambling will, in the long run, be more than offset and negated by the
irreparable damage to the people's moral values.

Also, the moral standing of the government in its repeated avowals

against "illegal gambling" is fatally flawed and becomes untenable when
it itself engages in the very activity it seeks to eradicate.

One can go through the Court's decision today and mentally replace the
activity referred to therein as gambling, which is legal only because it is
authorized by law and run by the government, with the activity known
asprostitution. Would prostitution be any less reprehensible were it to be
authorized by law, franchised, and "regulated" by the government, in
return for the substantial revenues it would yield the government to carry
out its laudable projects, such as infrastructure and social amelioration?
The question, I believe, answers itself. I submit that the sooner the
legislative department outlaws all forms of gambling, as a fundamental
state policy, and the sooner the executive implements such policy, the
better it will be for the nation.

Melencio-Herrera, J., concur.


66666666
EN BANC
[G.R. No. 122156. February 3, 1997]
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
DECISION
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in
the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos,[1] is invoked by petitioner in its bid to acquire 51% of the shares
of the Manila Hotel Corporation (MHC) which owns the historic Manila
Hotel. Opposing, respondents maintain that the provision is not self-
executing but requires an implementing legislation for its
enforcement. Corollarily, they ask whether the 51% shares form part of
the national economy and patrimony covered by the protective mantle of
the Constitution.
The controversy arose when respondent Government Service
Insurance System (GSIS), pursuant to the privatization program of the
Philippine Government under Proclamation No. 50 dated 8 December
1986, decided to sell through public bidding 30% to 51% of the issued
and outstanding shares of respondent MHC. The winning bidder, or the
eventual strategic partner, is to provide management expertise and/or an
international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.[2] In a
close bidding held on 18 September 1995 only two (2) bidders
participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares
at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
Sheraton as its hotel operator, which bid for the same number of shares
at P44.00 per share, or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent
GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC
-
1. The Highest Bidder must comply with the conditions set forth below by
October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose
the right to purchase the Block of Shares and GSIS will instead offer the Block
of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or
other type of contract specified by the Highest Bidder in its strategic plan for the
Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement
with GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after
the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October
23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/ OGCC (Office of the Government Corporate Counsel) are
obtained.[3]
Pending the declaration of Renong Berhard as the winning
bidder/strategic partner and the execution of the necessary contracts,
petitioner in a letter to respondent GSIS dated 28 September 1995
matched the bid price of P44.00 per share tendered by Renong Berhad.
[4]
 In a subsequent letter dated 10 October 1995 petitioner sent a
managers check issued by Philtrust Bank for Thirty-three Million Pesos
(P33,000,000.00) as Bid Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused
to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS
has disregarded the tender of the matching bid and that the sale of 51%
of the MHC may be hastened by respondent GSIS and consummated
with Renong Berhad, petitioner came to this Court on prohibition and
mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and
consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the
Court En Banc after it was referred to it by the First Division. The case
was then set for oral arguments with former Chief Justice Enrique M.
Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the
1987 Constitution and submits that the Manila Hotel has been identified
with the Filipino nation and has practically become a historical monument
which reflects the vibrancy of Philippine heritage and culture. It is a
proud legacy of an earlier generation of Filipinos who believed in the
nobility and sacredness of independence and its power and capacity to
release the full potential of the Filipino people. To all intents and
purposes, it has become a part of the national patrimony.[6] Petitioner
also argues that since 51% of the shares of the MHC carries with it the
ownership of the business of the hotel which is owned by respondent
GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction
involving 51% of the shares of stock of the MHC is clearly covered by the
term national economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies.[7]
It is also the thesis of petitioner that since Manila Hotel is part of
the national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
bid offer of the Malaysian firm. For the bidding rules mandate that if for
any reason, the Highest Bidder cannot be awarded the Block of Shares,
GSIS may offer this to the other Qualified Bidders that have validly
submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share. [8]
Respondents except. They maintain that: First, Sec. 10, second
par., Art. XII, of the 1987 Constitution is merely a statement of principle
and policy since it is not a self-executing provision and requires
implementing legislation(s) x x x x Thus, for the said provision to operate,
there must be existing laws to lay down conditions under which business
may be done.[9]
Second, granting that this provision is self-executing, Manila Hotel
does not fall under the term national patrimony which only refers to lands
of the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife,
flora and fauna and all marine wealth in its territorial sea, and exclusive
marine zone as cited in the first and second paragraphs of Sec. 2, Art.
XII, 1987 Constitution. According to respondents, while petitioner speaks
of the guests who have slept in the hotel and the events that have
transpired therein which make the hotel historic, these alone do not make
the hotel fall under the patrimony of the nation. What is more, the
mandate of the Constitution is addressed to the State, not to respondent
GSIS which possesses a personality of its own separate and distinct from
the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national
patrimony, the constitutional provision invoked is still inapplicable since
what is being sold is only 51% of the outstanding shares of the
corporation, not the hotel building nor the land upon which the building
stands. Certainly, 51% of the equity of the MHC cannot be considered
part of the national patrimony. Moreover, if the disposition of the shares
of the MHC is really contrary to the Constitution, petitioner should have
questioned it right from the beginning and not after it had lost in the
bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the
bidding rules which provides that if for any reason, the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share, is misplaced. Respondents postulate that the privilege of
submitting a matching bid has not yet arisen since it only takes place if
for any reason, the Highest Bidder cannot be awarded the Block of
Shares. Thus the submission by petitioner of a matching bid is premature
since Renong Berhad could still very well be awarded the block of shares
and the condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of
discretion should fail since respondent GSIS did not exercise its
discretion in a capricious, whimsical manner, and if ever it did abuse its
discretion it was not so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by
law. Similarly, the petition for mandamus should fail as petitioner has no
clear legal right to what it demands and respondents do not have an
imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for
the governance and administration of a nation. It is supreme, imperious,
absolute and unalterable except by the authority from which it
emanates. It has been defined as the fundamental and paramount law of
the nation.[10] It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers
and duties, and establishes certain fixed principles on which government
is founded. The fundamental conception in other words is that it is a
supreme law to which all other laws must conform and in accordance
with which all private rights must be determined and all public authority
administered.[11] Under the doctrine of constitutional supremacy, if a law
or contract violates any norm of the constitution that law or contract
whether promulgated by the legislative or by the executive branch or
entered into by private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is the
fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies
and principles. Their provisions command the legislature to enact laws
and carry out the purposes of the framers who merely establish an
outline of government providing for the different departments of the
governmental machinery and securing certain fundamental and
inalienable rights of citizens.[12] A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in itself and
becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the
right it grants may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and extent of the
right conferred and the liability imposed are fixed by the constitution itself,
so that they can be determined by an examination and construction of its
terms, and there is no language indicating that the subject is referred to
the legislature for action. [13]
As against constitutions of the past, modern constitutions have
been generally drafted upon a different principle and have often become
in effect extensive codes of laws intended to operate directly upon the
people in a manner similar to that of statutory enactments, and the
function of constitutional conventions has evolved into one more like that
of a legislative body. Hence, unless it is expressly provided that a
legislative act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring
legislation instead of self-executing, the legislature would have the power
to ignore and practically nullify the mandate of the fundamental law.
[14]
 This can be cataclysmic. That is why the prevailing view is, as it has
always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing x x x x Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a contrary
rule would give the legislature discretion to determine when, or whether, they
shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply
refusing to pass the needed implementing statute.[15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions
on the floor of the 1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question
as the Chairman of the Committee on Style. If the
wording of PREFERENCE is given to QUALIFIED
FILIPINOS, can it be understood as a preference to
qualified Filipinos vis-a-vis Filipinos who are not
qualified. So, why do we not make it clear? To
qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner
Rodrigo? Is it to remove the word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED
FILIPINOS as against whom? As against aliens or
over aliens ?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word QUALIFIED because
the existing laws or prospective laws will always lay
down conditions under which business may be
done. For example, qualifications on capital,
qualifications on the setting up of other financial
structures, et cetera (underscoring supplied by
respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in
such a way as not to make it appear that it is non-self-executing but
simply for purposes of style. But, certainly, the legislature is not
precluded from enacting further laws to enforce the constitutional
provision so long as the contemplated statute squares with the
Constitution.Minor details may be left to the legislature without impairing
the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still
enact legislation to facilitate the exercise of powers directly granted by
the constitution, further the operation of such a provision, prescribe a
practice to be used for its enforcement, provide a convenient remedy for
the protection of the rights secured or the determination thereof, or place
reasonable safeguards around the exercise of the right. The mere fact
that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such
a provision ineffective in the absence of such legislation. The omission
from a constitution of any express provision for a remedy for enforcing a
right or liability is not necessarily an indication that it was not intended to
be self-executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution,
further the exercise of constitutional right and make it more available.
[17]
 Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec.
10, second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-
executing.[18] The argument is flawed. If the first and third paragraphs are
not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by
Filipinos, as in the first paragraph, and the State still needs legislation to
regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same
logic, the second paragraph can only be self-executing as it does not by
its language require any legislation in order to give preference to qualified
Filipinos in the grant of rights, privileges and concessions covering the
national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another.[19]
Even the cases cited by respondents holding that certain
constitutional provisions are merely statements of principles and policies,
which are basically not self-executing and only placed in the Constitution
as moral incentives to legislation, not as judicially enforceable rights - are
simply not in point. Basco v. Philippine Amusements and Gaming
Corporation[20] speaks of constitutional provisions on personal dignity,
[21]
 the sanctity of family life,[22] the vital role of the youth in nation-building,
[23]
 the promotion of social justice,[24] and the values of education.
[25]
 Tolentino v. Secretary of Finance[26] refers to constitutional provisions
on social justice and human rights[27] and on education.
[28]
 Lastly,Kilosbayan, Inc. v. Morato[29] cites provisions on the promotion
of general welfare,[30] the sanctity of family life,[31] the vital role of the
youth in nation-building[32] and the promotion of total human liberation and
development.[33] A reading of these provisions indeed clearly shows that
they are not judicially enforceable constitutional rights but merely
guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa
loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987
Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rules for
its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable. When
our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall
give preference to qualified Filipinos, it means just that - qualified
Filipinos shall be preferred. And when our Constitution declares that a
right exists in certain specified circumstances an action may be
maintained to enforce such right notwithstanding the absence of any
legislation on the subject; consequently, if there is no statute especially
enacted to enforce such constitutional right, such right enforces itself by
its own inherent potency and puissance, and from which all legislations
must take their bearings. Where there is a right there is a remedy. Ubi
jus ibi remedium.
As regards our national patrimony, a member of the 1986
Constitutional Commission[34] explains -
The patrimony of the Nation that should be conserved and
developed refers not only to our rich natural resources but also to
the cultural heritage of our race. It also refers to our intelligence in
arts, sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the mental
ability or faculty of our people.
We agree. In its plain and ordinary meaning, the
term patrimony pertains to heritage.[35] When the Constitution speaks
of national patrimony, it refers not only to the natural resources of the
Philippines, as the Constitution could have very well used the
term natural resources, but also to the cultural heritage of the Filipinos.
Manila Hotel has become a landmark - a living testimonial of
Philippine heritage. While it was restrictively an American hotel when it
first opened in 1912, it immediately evolved to be truly Filipino. Formerly
a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called
the Cultural Center of the 1930s. It was the site of the festivities during
the inauguration of the Philippine Commonwealth. Dubbed as the Official
Guest House of the Philippine Government it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. [36]
The history of the hotel has been chronicled in the book The
Manila Hotel: The Heart and Memory of a City.[37] During World War II the
hotel was converted by the Japanese Military Administration into a
military headquarters. When the American forces returned to recapture
Manila the hotel was selected by the Japanese together with Intramuros
as the two (2) places for their final stand. Thereafter, in the 1950s and
1960s, the hotel became the center of political activities, playing host to
almost every political convention. In 1970 the hotel reopened after a
renovation and reaped numerous international recognitions, an
acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel
was the site of a failed coup d etat where an aspirant for vice-president
was proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute
witness to the triumphs and failures, loves and frustrations of the
Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and
nationhood. Verily, Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the equity of the MHC comes
within the purview of the constitutional shelter for it comprises the
majority and controlling stock, so that anyone who acquires or owns the
51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and
the land on which the hotel edifice stands. Consequently, we cannot
sustain respondents claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding shares
of the corporation, not the Hotel building nor the land upon which the
building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as
used in our Constitution also includes corporations at least 60% of which
is owned by Filipinos. This is very clear from the proceedings of the 1986
Constitutional Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the
Nolledo amendment. And the amendment would
consist in substituting the words QUALIFIED
FILIPINOS with the following: CITIZENS OF THE
PHILIPPINES OR CORPORATIONS OR
ASSOCIATIONS WHOSE CAPITAL OR
CONTROLLING STOCK IS WHOLLY OWNED BY
SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent
is agreeable, but we have to raise a question. Suppose
it is a corporation that is 80-percent Filipino, do we not
give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly
owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it
if we say that the preference should only be 100-
percent Filipino.
MR. DAVIDE. I want to get that meaning clear because
QUALIFIED FILIPINOS may refer only to individuals
and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the
amendment be read again.
MR. NOLLEDO. The amendment will read: IN THE GRANT
OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS. And the
word Filipinos here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-
controlled entities or entities fully-controlled by
Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request
Commissioner Nolledo to please restate his
amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES
AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign
enterprise is qualified and a Filipino enterprise is also
qualified, will the Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
 MR. FOZ. If the foreigner is more qualified in some aspects
than the Filipino enterprise, will the Filipino still be
preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it
will be SHALL - THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS. This
embodies the so-called Filipino First policy. That
means that Filipinos should be given preference in the
grant of concessions, privileges and rights covering the
national patrimony.[42]
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further clarified by
Commissioner Nolledo[43] -
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy x x x
x This provision was never found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency.It certainly does NOT mandate the
pampering and preferential treatment to Filipino citizens or organizations that
are incompetent or inefficient, since such an indiscriminate preference would be
counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice
has to be made between a qualified foreigner and a qualified Filipino, the latter
shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of the qualified
bidders. It was pre-qualified by respondent GSIS in accordance with its
own guidelines so that the sole inference here is that petitioner has been
found to be possessed of proven management expertise in the hotel
industry, or it has significant equity ownership in another hotel company,
or it has an overall management and marketing proficiency to
successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution
by arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision - by the government itself - is only too
distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions
of the Constitution which evidently need implementing legislation have
juridical life of their own and can be the source of a judicial remedy. We
cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation.In
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt -
The executive department has a constitutional duty to implement laws, including
the Constitution, even before Congress acts - provided that there are
discoverable legal standards for executive action. When the executive acts, it
must be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the
Constitution and the laws is not the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a constitutional
command. That is not how constitutional government operates.[45]
Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by itself
possesses a separate and distinct personality.This argument again is at
best specious. It is undisputed that the sale of 51% of the MHC could
only be carried out with the prior approval of the State acting through
respondent Committee on Privatization. As correctly pointed out by Fr.
Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a state action. In constitutional
jurisprudence, the acts of persons distinct from the government are
considered state action covered by the Constitution (1) when the activity
it engages in is apublic function; (2) when the government is so
significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or
authorized the action. It is evident that the act of respondent GSIS in
selling 51% of its share in respondent MHC comes under the second and
third categories of state action. Without doubt therefore the transaction,
although entered into by respondent GSIS, is in fact a transaction of the
State and therefore subject to the constitutional command. [46]
When the Constitution addresses the State it refers not only to the
people but also to the government as elements of the State. After all,
government is composed of three (3) divisions of power - legislative,
executive and judicial. Accordingly, a constitutional mandate directed to
the State is correspondingly directed to the three (3) branches of
government. It is undeniable that in this case the subject constitutional
injunction is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its authority
from the State.
It should be stressed that while the Malaysian firm offered the
higher bid it is not yet the winning bidder. The bidding rules expressly
provide that the highest bidder shall only be declared the winning bidder
after it has negotiated and executed the necessary contracts, and
secured the requisite approvals. Since the Filipino First Policy provision
of the Constitution bestows preference on qualified Filipinos the mere
tending of the highest bid is not an assurance that the highest bidder will
be declared the winning bidder.Resultantly, respondents are not bound to
make the award yet, nor are they under obligation to enter into one with
the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and other
interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding
rules issued by respondent GSIS, lest the bidding rules be nullified for
being violative of the Constitution. It is a basic principle in constitutional
law that all laws and contracts must conform with the fundamental law of
the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any
reason the Highest Bidder cannot be awarded the Block of Shares, GSIS
may offer this to other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the highest bid
in terms of price per share.[47] Certainly, the constitutional mandate itself
is reason enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or even the
highest, bid. In fact, we cannot conceive of a stronger reason than the
constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in
a public bidding concerning the grant of rights, privileges and
concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will
have to be allowed to match the bid of the foreign entity. And if the
Filipino matches the bid of a foreign firm the award should go to the
Filipino. It must be so if we are to give life and meaning to the Filipino
First Policy provision of the 1987 Constitution.For, while this may neither
be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it
would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the
Philippines are understood to be always open to public scrutiny. These
are given factors which investors must consider when venturing into
business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities
is presumed to know his rights and obligations under the Constitution and
the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered
by the foreign entity. In the case before us, while petitioner was already
preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had
matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioners matching bid did the latter have a cause
of action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To insist on
selling the Manila Hotel to foreigners when there is a Filipino group
willing to match the bid of the foreign group is to insist that government
be treated as any other ordinary market player, and bound by its
mistakes or gross errors of judgment, regardless of the consequences to
the Filipino people. The miscomprehension of the Constitution is
regrettable. Thus we would rather remedy the indiscretion while there is
still an opportunity to do so than let the government develop the habit of
forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by
Renong Berhad pursuant to the bidding rules, respondent GSIS is left
with no alternative but to award to petitioner the block of shares of MHC
and to execute the necessary agreements and documents to effect the
sale in accordance not only with the bidding guidelines and procedures
but with the Constitution as well. The refusal of respondent GSIS to
execute the corresponding documents with petitioner as provided in the
bidding rules after the latter has matched the bid of the Malaysian firm
clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a guideline
for future legislation but primarily to be enforced; so must it be
enforced. This Court as the ultimate guardian of the Constitution will
never shun, under any reasonable circumstance, the duty of upholding
the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and
diminish, much less undermine, the influx of foreign investments. Far
from it, the Court encourages and welcomes more business opportunities
but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on
this matter could have not been more appropriately articulated by Chief
Justice Narvasa -
As scrupulously as it has tried to observe that it is not its function to substitute
its judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been
spared criticism for decisions perceived as obstacles to economic progress and
development x x x x in connection with a temporary injunction issued by the
Courts First Division against the sale of the Manila Hotel to a Malaysian Firm
and its partner, certain statements were published in a major daily to the effect
that that injunction again demonstrates that the Philippine legal system can be a
major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court
to intervene in contracts of the kind referred to or set itself up as the judge of
whether they are viable or attainable, it is its bounden duty to make sure that
they do not violate the Constitution or the laws, or are not adopted or
implemented with grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of
unfair and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its
business viability and preventing further losses, regardless of the
character of the asset, should not take precedence over non-material
values. A commercial, nay even a budgetary, objective should not be
pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will
always defer to the Constitution in the proper governance of a free
society; after all, there is nothing sosacrosanct in any economic policy as
to draw itself beyond judicial review when the Constitution is involved. [49]
Nationalism is inherent in the very concept of the Philippines being
a democratic and republican state, with sovereignty residing in the
Filipino people and from whom all government authority emanates. In
nationalism, the happiness and welfare of the people must be the
goal. The nation-state can have no higher purpose. Any interpretation of
any constitutional provision must adhere to such basic
concept. Protection of foreign investments, while laudible, is merely a
policy. It cannot override the demands of nationalism.[50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just
any commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines
as a nation. We are talking about a hotel where heads of states would
prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the
Philippines. Thus the Manila Hotel has played and continues to play a
significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the
Filipino soul - a place with a history of grandeur; a most historical setting
that has played a part in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined
efforts of respondents to sell the historical landmark - this Grand Old
Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance
of this epic exponent of the Filipino psyche to alien hands cannot be less
than mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nations soul for some pieces of foreign silver. And so we
ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos if Manila Hotel - and all that it
stands for - is sold to a non-Filipino? How much of national pride will
vanish if the nations cultural heritage is entrusted to a foreign entity? On
the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and
well-meaning Filipino?This is the plain and simple meaning of the Filipino
First Policy provision of the Philippine Constitution. And this Court,
heeding the clarion call of the Constitution and accepting the duty of
being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE GOVERNMENT
CORPORATE COUNSEL are directed to CEASE and DESIST from
selling 51% of the shares of the Manila Hotel Corporation to RENONG
BERHAD, and to ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase the subject 51% of the
shares of the Manila Hotel Corporation at P44.00 per share and
thereafter to execute the necessary agreements and documents to effect
the sale, to issue the necessary clearances and to do such other acts
and deeds as may be necessary for the purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan,
Francisco, and Hermosisima, Jr., JJ, concur.
Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his
dissent.
Padilla, J., see concurring opinion.
Vitug, J., see separate concurring opinion
Mendoza, J., see concurring opinion
Torres, J., with separate opinion
Puno, J., see dissent.
Panganiban J., with separate dissenting opinion.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28196      November 9, 1967
RAMON A. GONZALES, petitioner,  Philippine Constitution Association — hereinafter referred to as the
vs.
COMMISSION ON ELECTIONS, DIRECTOR OF PRINTING and
AUDITOR GENERAL, respondents.
G.R. No. L-28224      November 9, 1967
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), petitioner,  Court the petition in G. R. No. L-28224, for review bycertiorari of the
vs.
COMMISSION ON ELECTIONS, respondent.
No. 28196:
Ramon A. Gonzales for and in his own behalf as petitioner. 
Juan T. David as amicus curiae
Office of the Solicitor General for respondents.
No. 28224:
Salvador Araneta for petitioner.  have filed an answer denying the truth of this allegation, upon the ground
Office of the Solicitor General for respondent.
CONCEPCION, C.J.:
G. R. No. L-28196 is an original action for prohibition, with preliminary
injunction.
Petitioner therein prays for judgment:
1) Restraining: (a) the Commission on Elections from enforcing Republic
Act No. 4913, or from performing any act that will result in the holding of
the plebiscite for the ratification of the constitutional amendments
proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of
Congress of the Philippines, approved on March 16, 1967; (b) the
Director of Printing from printing ballots, pursuant to said Act and
Resolutions; and (c) the Auditor General from passing in audit any
disbursement from the appropriation of funds made in said Republic Act
No. 4913; and
2) declaring said Act unconstitutional and void.
The main facts are not disputed. On March 16, 1967, the Senate and the
House of Representatives passed the following resolutions:
1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5,
Article VI, of the Constitution of the Philippines, be amended so as to
increase the membership of the House of Representatives from a
maximum of 120, as provided in the present Constitution, to a maximum
of 180, to be apportioned among the several provinces as nearly as may
be according to the number of their respective inhabitants, although each
province shall have, at least, one (1) member;
2. R. B. H. No. 2, calling a convention to propose amendments to said
Constitution, the convention to be composed of two (2) elective delegates
from each representative district, to be "elected in the general elections
to be held on the second Tuesday of November, 1971;" and
3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same
Constitution, be amended so as to authorize Senators and members of
the House of Representatives to become delegates to the
aforementioned constitutional convention, without forfeiting their
respective seats in Congress.
Subsequently, Congress passed a bill, which, upon approval by the
President, on June 17, 1967, became Republic Act No. 4913, providing
that the amendments to the Constitution proposed in the aforementioned
Resolutions No. 1 and 3 be submitted, for approval by the people, at the
general elections which shall be held on November 14, 1967.
The petition in L-28196 was filed on October 21, 1967. At the hearing
thereof, on October 28, 1967, the Solicitor General appeared on behalf of
respondents. Moreover, Atty. Juan T. David and counsel for the
PHILCONSA — were allowed to argue as amici curiae. Said counsel for
the PHILCONSA, Dr. Salvador Araneta, likewise prayed that the decision
in this case be deferred until after a substantially identical case brought
by said organization before the Commission on Elections,1 which was
expected to decide it any time, and whose decision would, in all
probability, be appealed to this Court — had been submitted thereto for
final determination, for a joint decision on the identical issues raised in
both cases. In fact, on October 31, 1967, the PHILCONSA filed with this
resolution of the Commission on Elections2 dismissing the petition
therein. The two (2) cases were deemed submitted for decision on
November 8, 1967, upon the filing of the answer of respondent, the
memorandum of the petitioner and the reply memorandum of respondent
in L-28224.
Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino
citizen, a taxpayer, and a voter. He claims to have instituted case L-
28196 as a class unit, for and in behalf of all citizens, taxpayers, and
voters similarly situated. Although respondents and the Solicitor General
that they have no knowledge or information to form a belief as to the truth
thereof, such denial would appear to be a perfunctory one. In fact, at the
hearing of case L-28196, the Solicitor General expressed himself in favor
of a judicial determination of the merits of the issued raised in said case.
The PHILCONSA, petitioner in L-28224, is admittedly a corporation duly
organized and existing under the laws of the Philippines, and a civic,
non-profit and non-partisan organization the objective of which is to
uphold the rule of law in the Philippines and to defend its Constitution
against erosions or onslaughts from whatever source. Despite his
aforementioned statement in L-28196, in his answer in L-28224 the
Solicitor General maintains that this Court has no jurisdiction over the
subject-matter of L-28224, upon the ground that the same is "merely
political" as held inMabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino,
who appeared before the Commission on Elections and filed an
opposition to the PHILCONSA petition therein, was allowed to appear
before this Court and objected to said petition upon the ground: a) that
the Court has no jurisdiction either to grant the relief sought in the
petition, or to pass upon the legality of the composition of the House of
Representatives; b) that the petition, if granted, would, in effect, render in
operational the legislative department; and c) that "the failure of
Congress to enact a valid reapportionment law . . . does not have the
legal effect of rendering illegal the House of Representatives elected
thereafter, nor of rendering its acts null and void."
JURISDICTION
As early as Angara vs. Electoral Commission,4 this Court — speaking
through one of the leading members of the Constitutional Convention and
a respected professor of Constitutional Law, Dr. Jose P. Laurel —
declared that "the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent
units thereof." It is true that inMabanag vs. Lopez Vito,5 this Court
characterizing the issue submitted thereto as a political one, declined to
pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution — which
was being submitted to the people for ratification — satisfied the three-
fourths vote requirement of the fundamental law. The force of this
precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate,6 Avelino vs. Cuenco,7 Tañada vs.
Cuenco,8 and Macias vs. Commission on Elections.9In the first, we held
that the officers and employees of the Senate Electoral Tribunal are
under its supervision and control, not of that of the Senate President, as
claimed by the latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the Senate; in the
third, we nullified the election, by Senators belonging to the party having
the largest number of votes in said chamber, purporting to act on behalf
of the party having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second party,
of the, Senate Electoral Tribunal; and in the fourth, we declared
unconstitutional an act of Congress purporting to apportion the
representative districts for the House of Representatives, upon the
ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we
rejected the theory, advanced in these four (4) cases, that the issues
therein raised were political questions the determination of which is
beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to
Congress.10 It is part of the inherent powers of the people — as the
repository of sovereignty in a republican state, such as ours11 — to make,
and, hence, to amend their own Fundamental Law. Congress may
propose amendments to the Constitution merely because the same
explicitly grants such power.12 Hence, when exercising the same, it is
said that Senators and Members of the House of Representatives
act, not as members ofCongress, but as component elements of
a constituent assembly. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the people, when
performing the same function,13 for their authority does not emanate from
the Constitution — they are the very source of all powers of
government, including the Constitution itself .
Since, when proposing, as a constituent assembly, amendments to the
Constitution, the members of Congress derive their authority from the
Fundamental Law, it follows, necessarily, that they do not have the final
say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary
to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact
that, the Constitution expressly confers upon the Supreme Court,14 the
power to declare a treaty unconstitutional,15 despite the eminently
political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress — acting as a
constituent assembly — violates the Constitution essentially justiciable,
not political, and, hence, subject to judicial review, and, to the extent that
this view may be inconsistent with the stand taken in Mabanag vs. Lopez
Vito,16 the latter should be deemed modified accordingly. The Members
of the Court are unanimous on this point.
THE MERITS
Section 1 of Article XV of the Constitution, as amended, reads:
The Congress in joint session assembled by a vote of three-
fourths of all the Members of the Senate and of the House of
Representatives voting separately, may propose amendments
to this Constitution or call a convention for that purpose. Such
amendments shall be valid as part of this Constitution when
approved by a majority of the votes cast at an election at which
the amendments are submitted to the people for their
ratification.
Pursuant to this provision, amendments to the Constitution may be
proposed, either by Congress, or by a convention called by Congress for
that purpose. In either case, the vote of "three-fourths of all the members
of the Senate and of the House of Representatives voting separately" is
necessary. And, "such amendments shall be valid as part of" the
"Constitution when approved by a majority of the votes cast at an election
at which the amendments are submitted to the people for their
ratification."
In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have
been approved by a vote of three-fourths of all the members of the
Senate and of the House of Representatives voting separately. This,
notwithstanding, it is urged that said resolutions are null and void
because:
1. The Members of Congress, which approved the proposed
amendments, as well as the resolution calling a convention to propose
amendments, are, at best, de facto Congressmen;
2. Congress may adopt either one of two alternatives propose —
amendments or call a convention therefore but may not avail of both —
that is to say, propose amendment and call a convention — at the same
time;
3. The election, in which proposals for amendment to the Constitution
shall be submitted for ratification, must be
aspecial election, not a general election, in which officers of the national
and local governments — such as the elections scheduled to be held on
November 14, 1967 — will be chosen; and
4. The spirit of the Constitution demands that the election, in which
proposals for amendment shall be submitted to the people for ratification,
must be held under such conditions — which, allegedly, do not exist —
as to give the people a reasonable opportunity to have a fair grasp of the
nature and implications of said amendments.
Legality of Congress and Legal Status of the Congressmen
The first objection is based upon Section 5, Article VI, of the Constitution,
which provides:
The House of Representatives shall be composed of not more
than one hundred and twenty Members who shall be
apportioned among the several provinces as nearly as may be
according to the number of their respective inhabitants, but
each province shall have at least one Member. The Congress
shall by law make an apportionment within three years after
the return of every enumeration, and not otherwise. Until such
apportionment shall have been made, the House of
Representatives shall have the same number of Members as
that fixed by law for the National Assembly, who shall be
elected by the qualified electors from the present Assembly
districts. Each representative district shall comprise, as far as
practicable, contiguous and compact territory.
It is urged that the last enumeration or census took place in 1960; that,
no apportionment having been made within three (3) years thereafter, the
Congress of the Philippines and/or the election of its Members became
illegal; that Congress and its Members, likewise, became a de
facto Congress and/or de facto congressmen, respectively; and that,
consequently, the disputed Resolutions, proposing amendments to the
Constitution, as well as Republic Act No. 4913, are null and void.
It is not true, however, that Congress has not made an apportionment
within three years after the enumeration or census made in 1960. It did
actually pass a bill, which became Republic Act No. 3040,17 purporting to
make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein
undertaken had not been made according to the number of inhabitants of
the different provinces of the Philippines.18
Moreover, we are unable to agree with the theory that, in view of the
failure of Congress to make a valid apportionment within the period
stated in the Constitution, Congress became an "unconstitutional
Congress" and that, in consequence thereof, the Members of its House
of Representatives are de facto officers. The major premise of this
process of reasoning is that the constitutional provision on
"apportionment within three years after the return of every enumeration,
and not otherwise," is mandatory. The fact that Congress is under legal
obligation to make said apportionment does not justify, however, the
conclusion that failure to comply with such obligation rendered Congress
illegal or unconstitutional, or that its Members have become de
facto officers.
It is conceded that, since the adoption of the Constitution in 1935,
Congress has not made a valid apportionment as required in said
fundamental law. The effect of this omission has been envisioned in the
Constitution, pursuant to which:
 . . . Until such apportionment shall have been made, the House
of Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall be
elected by the qualified electors from the present Assembly
districts. . . . .
The provision does not support the view that, upon the expiration of the
period to make the apportionment, a Congress which fails to make it is
dissolved or becomes illegal. On the contrary, it implies necessarily that
Congress shall continue to function with the representative districts
existing at the time of the expiration of said period.
It is argued that the above-quoted provision refers only to the elections
held in 1935. This theory assumes that an apportionment had to be made
necessarily before the first elections to be held after the inauguration of
the Commonwealth of the Philippines, or in 1938.19 The assumption, is,
however, unwarranted, for there had been no enumeration in 1935, and
nobody could foretell when it would be made. Those who drafted and
adopted the Constitution in 1935 could be certain, therefore, that the
three-year period, after the earliest possible enumeration, would expire
after the elections in 1938.
What is more, considering that several provisions of the Constitution,
particularly those on the legislative department, were amended in 1940,
by establishing a bicameral Congress, those who drafted and adopted
said amendment, incorporating therein the provision of the original
Constitution regarding the apportionment of the districts for
representatives, must have known that the three-year period therefor
would expire after the elections scheduled to be held and actually held in
1941.
Thus, the events contemporaneous with the framing and ratification of
the original Constitution in 1935 and of the amendment thereof in 1940
strongly indicate that the provision concerning said apportionment and
the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even
after subsequent elections.
Then again, since the report of the Director of the Census on the last
enumeration was submitted to the President on November 30, 1960, it
follows that the three-year period to make the apportionment did not
expire until 1963, or after the Presidential elections in 1961. There can be
no question, therefore, that the Senate and the House of Representatives
organized or constituted on December 30, 1961, were de jure bodies,
and that the Members thereof were de jure officers. Pursuant to the
theory of petitioners herein, upon expiration of said period of three years,
or late in 1963, Congress became illegal and its Members, or at least,
those of the House of Representatives, became illegal holder of their
respective offices, and were de facto officers.
Petitioners do not allege that the expiration of said three-year period
without a reapportionment, had the effect of abrogating or repealing the
legal provision creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or principle of law that
would warrant such conclusion. Neither do they allege that the term of
office of the members of said House automatically expired or that
they ipso facto forfeited their seats in Congress, upon the lapse of said
period for reapportionment. In fact, neither our political law, nor our law
on public officers, in particular, supports the view that failure to discharge
a mandatory duty, whatever it may be, would automatically result in the
forfeiture of an office, in the absence of a statute to this effect.
Similarly, it would seem obvious that the provision of our Election Law
relative to the election of Members of Congress in 1965 were not
repealed in consequence of the failure of said body to make an
apportionment within three (3) years after the census of 1960. Inasmuch
as the general elections in 1965 were presumably held in conformity with
said Election Law, and the legal provisions creating Congress — with a
House of Representatives composed of members elected by qualified
voters of representative districts as they existed at the time of said
elections — remained in force, we can not see how said Members of the
House of Representatives can be regarded as de facto officers owing to
the failure of their predecessors in office to make a reapportionment
within the period aforementioned.
Upon the other hand, the Constitution authorizes the impeachment of the
President, the Vice-President, the Justices of the Supreme Court and the
Auditor General for, inter alia, culpable violation of the Constitution, 20 the
enforcement of which is, not only their mandatory duty, but also, their
main function. This provision indicates that, despite the violation of such
mandatory duty, the title to their respective offices remains unimpaired,
until dismissal or ouster pursuant to a judgment of conviction rendered in
accordance with Article IX of the Constitution. In short, the loss of office
or the extinction of title thereto is not automatic.
Even if we assumed, however, that the present Members of Congress
are merely de facto officers, it would not follow that the contested
resolutions and Republic Act No. 4913 are null and void. In fact, the main
reasons for the existence of the de facto doctrine is that public interest
demands that acts of persons holding, under color of title, an office
created by a valid statute be, likewise, deemed valid insofar as the public
— as distinguished from the officer in question — is concerned. 21 Indeed,
otherwise, those dealing with officers and employees of the Government
would be entitled to demand from them satisfactory proof of their title to
the positions they hold, before dealing with them, or before recognizing
their authority or obeying their commands, even if they should act within
the limits of the authority vested in their respective offices, positions or
employments.22 One can imagine this great inconvenience, hardships
and evils that would result in the absence of the de facto doctrine.
As a consequence, the title of a de facto officer cannot be assailed
collaterally.23 It may not be contested except directly, by quo
warranto proceedings. Neither may the validity of his acts be questioned
upon the ground that he is merely a de facto officer.24 And the reasons
are obvious: (1) it would be an indirect inquiry into the title to the office;
and (2) the acts of a de facto officer, if within the competence of his
office, are valid, insofar as the public is concerned.
It is argued that the foregoing rules do not apply to the cases at bar
because the acts therein involved have not been completed and
petitioners herein are not third parties. This pretense is untenable. It is
inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties
to a suit being heard before Judge Capistrano objected to his continuing
to hear the case, for the reason that, meanwhile, he had reached the age
of retirement. This Court held that the objection could not be entertained,
because the Judge was at least, a de facto Judge, whose title can not be
assailed collaterally. It should be noted that Tayko was not a third party
insofar as the Judge was concerned. Tayko was one of the parties in the
aforementioned suit. Moreover, Judge Capistrano had not, as yet,
finished hearing the case, much less rendered decision therein. No rights
had vested in favor of the parties, in consequence of the acts of said
Judge. Yet, Tayko's objection was overruled. Needless to say, insofar as
Congress is concerned, its acts, as regards the Resolutions herein
contested and Republic Act No. 4913, are complete. Congress has
nothing else to do in connection therewith.
The Court is, also, unanimous in holding that the objection under
consideration is untenable.
Available Alternatives to Congress
Atty. Juan T. David, as amicus curiae, maintains that Congress may
either propose amendments to the Constitution or call a convention for
that purpose, but it can not do both, at the same time. This theory is
based upon the fact that the two (2) alternatives are connected in the
Constitution by the disjunctive "or." Such basis is, however, a weak one,
in the absence of other circumstances — and none has brought to our
attention — supporting the conclusion drawn by the amicus curiae. In
fact, the term "or" has, oftentimes, been held to mean "and," or vice-
versa, when the spirit or context of the law warrants it.26
It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to
the constitutional provision on Congress, to be submitted to the people
for ratification on November 14, 1967, whereas R. B. H. No. 2 calls for a
convention in1971, to consider proposals for amendment to the
Constitution, in general. In other words, the subject-matter of R. B. H. No.
2 is different from that of R B. H. Nos. 1 and 3. Moreover, the
amendments proposed under R. B. H. Nos. 1 and 3, will be submitted for
ratification several years before those that may be proposed by the
constitutional convention called in R. B. H. No. 2. Again, although the
three (3) resolutions were passed on the same date, they were taken up
and put to a vote separately, or one after the other. In other words, they
were not passed at the same time.
In any event, we do not find, either in the Constitution, or in the history
thereof anything that would negate the authority of different Congresses
to approve the contested Resolutions, or of the same Congress to pass
the same in, different sessions or different days of the same
congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on the
same day.
Counsel ask: Since Congress has decided to call a constitutional
convention to propose amendments, why not let the whole thing be
submitted to said convention, instead of, likewise, proposing some
specific amendments, to be submitted for ratification before said
convention is held? The force of this argument must be conceded. but
the same impugns the wisdom of the action taken by Congress, not
its authority to take it. One seeming purpose thereof to permit Members
of Congress to run for election as delegates to the constitutional
convention and participate in the proceedings therein, without forfeiting
their seats in Congress. Whether or not this should be done is a political
question, not subject to review by the courts of justice.
On this question there is no disagreement among the members of the
Court.
May Constitutional Amendments Be Submitted for Ratification
in a General Election?
Article XV of the Constitution provides:
. . . The Congress in joint session assembled, by a vote of
three-fourths of all the Members of the Senate and of the
House of Representatives voting separately, may propose
amendments to this Constitution or call a contention for that
purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the
people for their ratification.
There is in this provision nothing to indicate that the "election" therein
referred to is a "special," not a general, election. The circumstance that
three previous amendments to the Constitution had been submitted to
the people for ratification in special elections merely shows that
Congress deemed it best to do so under the circumstances then
obtaining. It does not negate its authority to submit proposed
amendments for ratification in general elections.
It would be better, from the viewpoint of a thorough discussion of the
proposed amendments, that the same be submitted to the people's
approval independently of the election of public officials. And there is no
denying the fact that an adequate appraisal of the merits and demerits
proposed amendments is likely to be overshadowed by the great
attention usually commanded by the choice of personalities involved in
general elections, particularly when provincial and municipal officials are
to be chosen. But, then, these considerations are addressed to the
wisdom of holding a plebiscite simultaneously with the election of public
officer. They do not deny the authority of Congress to choose either
alternative, as implied in the term "election" used, without qualification, in
the abovequoted provision of the Constitution. Such authority becomes
even more patent when we consider: (1) that the term "election,"
normally refers to the choice or selection of candidates to public office by
popular vote; and (2) that the word used in Article V of the Constitution,
concerning the grant of suffrage to women is, not "election," but
"plebiscite."
Petitioners maintain that the term "election," as used in Section 1 of Art.
XV of the Constitution, should be construed as meaning a
special election. Some members of the Court even feel that said term
("election") refers to a "plebiscite," without any "election," general or
special, of public officers. They opine that constitutional amendments
are, in general, if not always, of such important, if not transcendental and
vital nature as to demand that the attention of the people be focused
exclusively on the subject-matter thereof, so that their votes thereon may
reflect no more than their intelligent, impartial and considered view on the
merits of the proposed amendments, unimpaired, or, at least, undiluted
by extraneous, if not insidious factors, let alone the partisan political
considerations that are likely to affect the selection of elective officials.
This, certainly, is a situation to be hoped for. It is a goal the attainment of
which should be promoted. The ideal conditions are, however, one thing.
The question whether the Constitution forbids the submission of
proposals for amendment to the people except under such conditions, is
another thing. Much as the writer and those who concur in this opinion
admire the contrary view, they find themselves unable to subscribe
thereto without, in effect, reading into the Constitution what they believe
is not written thereon and can not fairly be deduced from the letter
thereof, since the spirit of the law should not be a matter of sheer
speculation.
The majority view — although the votes in favor thereof are insufficient to
declare Republic Act No. 4913 unconstitutional — as ably set forth in the
opinion penned by Mr. Justice Sanchez, is, however, otherwise.
Would the Submission now of the Contested Amendments to the People
Violate the Spirit of the Constitution?
It should be noted that the contested Resolutions were approved on
March 16, 1967, so that, by November 14, 1967, our citizenry shall have
had practically eight (8) months to be informed on the amendments in
question. Then again, Section 2 of Republic Act No. 4913 provides:
(1) that "the amendments shall be published in three consecutive issues
of the Official Gazette, at least twenty days prior to the election;"
(2) that "a printed copy of the proposed amendments shall be posted in a
conspicuous place in every municipality, city and provincial office building
and in every polling place not later than October 14, 1967," and that said
copy "shall remain posted therein until after the election;"
(3) that "at least five copies of said amendment shall be kept in each
polling place, to be made available for examination by the qualified
electors during election day;"
(4) that "when practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept in
each polling place;"
(5) that "the Commission on Elections shall make available copies of said
amendments in English, Spanish and, whenever practicable, in the
principal native languages, for free distributing:" and
(6) that the contested Resolutions "shall be printed in full" on the back of
the ballots which shall be used on November 14, 1967.
We are not prepared to say that the foregoing measures are palpably
inadequate to comply with the constitutional requirement that proposals
for amendment be "submitted to the people for their ratification," and that
said measures are manifestly insufficient, from a constitutional viewpoint,
to inform the people of the amendment sought to be made.
These were substantially the same means availed of to inform the people
of the subject submitted to them for ratification, from the original
Constitution down to the Parity Amendment. Thus, referring to the
original Constitution, Section 1 of Act No. 4200, provides:
Said Constitution, with the Ordinance appended thereto, shall
be published in the Official Gazette, in English and in Spanish,
for three consecutive issues at least fifteen days prior to said
election, and a printed copy of said Constitution, with the
Ordinance appended thereto, shall be posted in a conspicuous
place in each municipal and provincial government office
building and in each polling place not later than the twenty-
second day of April, nineteen hundred and thirty-five, and shall
remain posted therein continually until after the termination of
the election. At least ten copies of the Constitution with the
Ordinance appended thereto, in English and in Spanish, shall
be kept at each polling place available for examination by the
 qualified electors during election day. Whenever practicable,
copies in the principal local dialects as may be determined by
the Secretary of the Interior shall also be kept in each polling
place.
The provision concerning woman's suffrage is Section 1 of
Commonwealth Act No. 34, reading:
Said Article V of the Constitution shall be published in the
Official Gazette, in English and in Spanish, for three
consecutive issues at least fifteen days prior to said election,
and the said Article V shall be posted in a conspicuous place in
each municipal and provincial office building and in each
polling place not later than the twenty-second day of April,
nineteen and thirty-seven, and shall remain posted therein
continually until after the termination of the plebiscite. At least
ten copies of said Article V of the Constitution, in English and
in Spanish, shall be kept at each polling place available for
examination by the qualified electors during the plebiscite.
Whenever practicable, copies in the principal native languages,
as may be determined by the Secretary of the Interior, shall
also be kept in each polling place.
Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940
amendments, is of the following tenor:
The said amendments shall be published in English and
Spanish in three consecutive issues of the Official Gazette at
least twenty days prior to the election. A printed copy thereof
shall be posted in a conspicuous place in every municipal, city,
and provincial government office building and in every polling
place not later than May eighteen, nineteen hundred and forty,
and shall remain posted therein until after the election. At least
ten copies of said amendments shall be kept in each polling
place to be made available for examination by the qualified
electors during election day. When practicable, copies in the
principal native languages, as may be determined by the
Secretary of the Interior, shall also be kept therein.
As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to
the effect that:
The said amendment shall be published in English and
Spanish in three consecutive issues of the Official Gazette at
least twenty days prior to the election. A printed copy thereof
shall be posted in a conspicuous place in every municipal, city,
and provincial government office building and in every polling
place not later than February eleven, nineteen hundred and
forty-seven, and shall remain posted therein until after the
election. At least, ten copies of the said amendment shall be
kept in each polling place to be made available for examination
by the qualified electors during election day. When practicable,
copies in the principal native languages, as may be determined
by the Commission on Elections, shall also be kept in each
polling place.
The main difference between the present situation and that obtaining in
connection with the former proposals does not arise from the law enacted
therefor. The difference springs from the circumstance that the major
political parties had taken sides on previous amendments to the
Constitution — except, perhaps, the woman's suffrage — and,
consequently, debated thereon at some length before the plebiscite took
place. Upon the other hand, said political parties have not seemingly
made an issue on the amendments now being contested and have,
accordingly, refrained from discussing the same in the current political
campaign. Such debates or polemics as may have taken place — on a
rather limited scale — on the latest proposals for amendment, have been
due principally to the initiative of a few civic organizations and some
militant members of our citizenry who have voiced their opinion thereon.
A legislation cannot, however, be nullified by reason of the failure of
certain sectors of the community to discuss it sufficiently. Its
constitutionality or unconstitutionality depends upon no other factors than
those existing at the time of the enactment thereof, unaffected by the
acts or omissions of law enforcing agencies, particularly those that take
place subsequently to the passage or approval of the law.
Referring particularly to the contested proposals for amendment, the
sufficiency or insufficiency, from a constitutional angle, of the submission
thereof for ratification to the people on November 14, 1967, depends —
in the view of those who concur in this opinion, and who, insofar as this
phase of the case, constitute the minority — upon whether the provisions
of Republic Act No. 4913 are such as to fairly apprise the people of the
gist, the main idea or the substance of said proposals, which is — under
R. B. H. No. 1 — the increase of the maximum number of seats in the
House of Representatives, from 120 to 180, and — under R. B. H. No. 3
— the authority given to the members of Congress to run for delegates to
the Constitutional Convention and, if elected thereto, to discharge the
duties of such delegates, without forfeiting their seats in Congress. We —
who constitute the minority — believe that Republic Act No. 4913
satisfies such requirement and that said Act is, accordingly,
constitutional.
A considerable portion of the people may not know how over 160 of the
proposed maximum of representative districts are actually apportioned by
R. B. H. No. 1 among the provinces in the Philippines. It is not
improbable, however, that they are not interested in the details of the
apportionment, or that a careful reading thereof may tend in their simple
minds, to impair a clear vision thereof. Upon the other hand, those who
are more sophisticated, may enlighten themselves sufficiently by reading
the copies of the proposed amendments posted in public places, the
copies kept in the polling places and the text of contested resolutions, as
printed in full on the back of the ballots they will use.
It is, likewise, conceivable that as many people, if not more, may fail to
realize or envisage the effect of R. B. H. No. 3 upon the work of the
Constitutional Convention or upon the future of our Republic. But, then,
nobody can foretell such effect with certainty. From our viewpoint, the
provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain their
seats as legislators, even if they should run for and assume the functions
of delegates to the Convention.
We are impressed by the factors considered by our distinguished and
esteemed brethren, who opine otherwise, but, we feel that such factors
affect the wisdom of Republic Act No. 4913 and that of R. B. H. Nos. 1
and 3, not theauthority of Congress to approve the same.
The system of checks and balances underlying the judicial power to
strike down acts of the Executive or of Congress transcending the
confines set forth in the fundamental laws is not in derogation of the
principle of separation of powers, pursuant to which each department is
supreme within its own sphere. The determination of the conditions under
which the proposed amendments shall be submitted to the people is
concededly a matter which falls within the legislative sphere. We do not
believe it has been satisfactorily shown that Congress has exceeded the
limits thereof in enacting Republic Act No. 4913. Presumably, it could
have done something better to enlighten the people on the subject-matter
thereof. But, then, no law is perfect. No product of human endeavor is
beyond improvement. Otherwise, no legislation would be constitutional
and valid. Six (6) Members of this Court believe, however, said Act and
R. B. H. Nos. 1 and 3 violate the spirit of the Constitution.
Inasmuch as there are less than eight (8) votes in favor of declaring
Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid,
the petitions in these two (2) cases must be, as they are hereby, dismiss
and the writs therein prayed for denied, without special pronouncement
as to costs. It is so ordered.
Makalintal and Bengzon, J.P., JJ., concur.
Fernando, J., concurs fully with the above opinion, adding a few words
on the question of jurisdiction.
Separate Opinions
MAKALINTAL, J., concurring:
I concur in the foregoing opinion of the Chief Justice. I would make some
additional observations in connection with my concurrence. Sections 2
and 4 of Republic Act No. 4913 provide:
Sec. 2. The amendments shall be published in three
consecutive issues of the Official Gazette at least twenty days
prior to the election. A printed copy thereof shall be posted in a
conspicuous place in every municipality, city and provincial
office building and in every polling place not later than October
fourteen, nineteen hundred and sixty-seven, and shall remain
posted therein until after the election. At least five copies of the
said amendments shall be kept in each polling place to be
made available for examination by the qualified electors during
election day. When practicable, copies in the principal native
languages, as may be determined by the Commission on
Elections, shall be kept in each polling place. The Commission
on Elections shall make available copies of each amendments
in English, Spanish and, whenever practicable, in the principal
native languages, for free distribution.
xxx      xxx      xxx
Sec. 4. The ballots which shall be used in the election for the
approval of said amendments shall be printed in English and
Pilipino and shall be in the size and form prescribed by the
Commission on Elections: Provided, however, That at the back
of said ballot there shall be printed in full Resolutions of both
Houses of Congress Numbered One and Three, both adopted
on March sixteen, nineteen hundred and sixty-seven,
proposing the amendments: Provided, further, That the
questionnaire appearing on the face of the ballot shall be as
follows:
Are you in favor of the proposed amendment to Section five of
Article VI of our Constitution printed at the back of this ballot?
Are you in favor of the proposed amendment to section sixteen
of Article VI of our Constitution printed at the back of this
ballot?
To vote for the approval of the proposed amendments, the
voter shall write the word "yes" or its equivalent in Pilipino or in
the local dialect in the blank space after each question; to vote
for the rejection thereof, he shall write the word "No" or its
equivalent in Pilipino or in the local dialect.
I believe that intrinsically, that is, considered in itself and without
reference to extraneous factors and circumstances, the manner
prescribed in the aforesaid provisions is sufficient for the purpose of
having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I am
at a loss to say what else should have been required by the Act to make
it adhere more closely to the constitutional requirement. Certainly it would
have been out of place to provide, for instance, that government officials
and employees should go out and explain the amendments to the
people, or that they should be the subject of any particular means or form
of public discussion.
The objection of some members of the Court to Republic Act No. 4913
seems to me predicated on the fact that there are so many other issues
at stake in the coming general election that the attention of the
electorate, cannot be entirely focused on the proposed amendments,
such that there is a failure to properly submit them for ratification within
the intendment of the Constitution. If that is so, then the defect is not
intrinsic in the law but in its implementation. The same manner of
submitting the proposed amendments to the people for ratification may,
in a different setting, be sufficient for the purpose. Yet I cannot conceive
that the constitutionality or unconstitutionality of a law may be made to
depend willy-nilly on factors not inherent in its provisions. For a law to be
struck down as unconstitutional it must be so by reason of some
irreconcilable conflict between it and the Constitution. Otherwise a law
may be either valid or invalid, according to circumstances not found in its
provisions, such as the zeal with which they are carried out. To such a
thesis I cannot agree. The criterion would be too broad and relative, and
dependent upon individual opinions that at best are subjective. What one
may regard as sufficient compliance with the requirement of submission
to the people, within the context of the same law, may not be so to
another. The question is susceptible of as many views as there are
viewers; and I do not think this Court would be justified in saying that its
own view on the matter is the correct one, to the exclusion of the
opinions of others.
On the other hand, I reject the argument that the ratification must
necessarily be in a special election or plebiscite called for that purpose
alone. While such procedure is highly to be preferred, the Constitution
speaks simply of "an election at which the amendments are submitted to
the people for their ratification," and I do not subscribe to the restrictive
interpretation that the petitioners would place on this provision, namely,
that it means only a special election.
BENGZON, J.P., J., concurring:
It is the glory of our institutions that they are founded upon law, that no
one can exercise any authority over the rights and interests of others
except pursuant to and in the manner authorized by law.1 Based upon
this principle, petitioners Ramon A. Gonzales and Philippine Constitution
Association (PHILCONSA) come to this Court in separate petitions.
Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in
representation thru class suit of all citizens of this country, filed this suit
for prohibition with preliminary injunction to restrain the Commission on
Elections, Director of Printing and Auditor General from implementing
and/or complying with Republic Act 4913, assailing said law as
unconstitutional.
Petitioner PHILCONSA, as a civic, non-profit and non-partisan
corporation, assails the constitutionality not only of Republic Act 4913 but
also of Resolutions of Both Houses Nos. 1 and 3 of March 16, 1967.
Republic Act 4913, effective June 17, 1967, is an Act submitting to the
Filipino people for approval the amendments to the Constitution of the
Philippines proposed by the Congress of the Philippines in Resolutions of
Both Houses Numbered 1 and 3, adopted on March 16, 1967. Said
Republic Act fixes the date and manner of the election at which the
aforesaid proposed amendments shall be voted upon by the people, and
appropriates funds for said election. Resolutions of Both Houses Nos. 1
and 3 propose two amendments to the Constitution: the first, to amend
Sec. 5, Art. VI, by increasing the maximum membership of the House of
Representatives from 120 to 180, apportioning 160 of said 180 seats and
eliminating the provision that Congress shall by law make an
apportionment within three years after the return of every enumeration;
the second, to amend Sec. 16, Art. VI, by allowing Senators and
Representatives to be delegates to a constitutional convention without
forfeiting their seats.
Since both petitions relate to the proposed amendments, they are
considered together herein.
Specifically and briefly, petitioner Gonzales' objections are as follows: (1)
Republic Act 4913 violates Sec. 1, Art. XV of the Constitution, in
submitting the proposed amendments to the Constitution, to the people
for approval, at the general election of 1967 instead of at a special
election solely for that purpose; (2) Republic Act 4913 violates Sec. 1,
Art. XV of the Constitution, since it was not passed with the 3/4 vote in
joint session required when Congress proposes amendments to the
Constitution, said Republic Act being a step in or part of the process of
proposing amendments to the Constitution; and (3) Republic Act 4913
violates the due process clause of the Constitution (Sec. 1, Subsec. 1,
Art. III), in not requiring that the substance of the proposed amendments
be stated on the face of the ballot or otherwise rendering clear the import
of the proposed amendments, such as by stating the provisions before
and after said amendments, instead of printing at the back of the ballot
only the proposed amendments.
Since observance of Constitutional provisions on the procedure for
amending the Constitution is concerned, the issue is cognizable by this
Court under its powers to review an Act of Congress to determine its
conformity to the fundamental law. For though the Constitution leaves
Congress free to propose whatever Constitutional amendment it deems
fit, so that the substance or content of said proposed amendment is a
matter of policy and wisdom and thus a political question, the
Constitution nevertheless imposes requisites as to
the manner or procedure of proposing such amendments, e.g., the three-
fourths vote requirement. Said procedure or manner, therefore, from
being left to the discretion of Congress, as a matter of policy and wisdom,
is fixed by the Constitution. And to that extent, all questions bearing on
whether Congress in proposing amendments followed the procedure
required by the Constitution, is perforce justiciable, it not being a matter
of policy or wisdom.
Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly
does not bear him on the point. It nowhere requires that the ratification be
thru an election solely for that purpose. It only requires that it be at "an
election at which the amendments are submitted to the people for their
ratification." To join it with an election for candidates to public office, that
is, to make it concurrent with such election, does not render it any less an
election at which the proposed amendments are submitted to the people
for their ratification. To prohibition being found in the plain terms of the
Constitution, none should be inferred. Had the framers of requiring
Constitution thought of requiring a special election for the purpose only of
the proposed amendments, they could have said so, by qualifying the
phrase with some word such as "special" or "solely" or "exclusively".
They did not.
It is not herein decided that such concurrence of election is wise, or that it
would not have been better to provide for a separate election exclusively
for the ratification of the proposed amendments. The point however is
that such separate and exclusive election, even if it may be better or
wiser, which again, is not for this Court to decide, is not included in the
procedure required by the Constitution to amend the same. The function
of the Judiciary is "not to pass upon questions of wisdom, justice or
expediency of legislation".2 It is limited to determining whether the action
taken by the Legislative Department has violated the Constitution or not.
On this score, I am of the opinion that it has not.
Petitioner Gonzales' second point is that Republic Act 4913 is deficient
for not having been passed by Congress in joint session by 3/4 vote.
Sec. 1, Art. XV of the Constitution provides:
Sec. 1. The Congress in joint session assembled, by a vote of
three-fourths of all the members of the Senate and of the
House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that
purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at
an election to which the amendments are submitted to the
people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by
the term "propose amendment" is meant to determine WHAT said
amendment shall be, then Republic Act 4913 does not; Resolutions of
Both Houses 1 and 3 already did that. If, on the other hand, it means, or
also means, to provide for how, when, and by what means the
amendments shall be submitted to the people for approval, then it does.
A careful reading of Sec. 1, Art. XV shows that the first sense. is the one
intended. Said Section has two sentences: in the first, it requires the 3/4
voting in joint session, for Congress to "propose amendments". And then
in the second sentence, it provides that "such amendments . . . shall be
submitted to the people for their ratification". This clearly indicates that by
the term "propose amendments" in the first sentence is meant to frame
the substance or the content or the WHAT-element of the amendments;
for it is this and this alone that is submitted to the people for their
ratification. The details of when the election shall be held for approval or
rejection of the proposed amendments, or the manner of holding it, are
not submitted for ratification to form part of the Constitution. Stated
differently, the plain language of Section 1, Art. XV, shows that the act of
proposing amendments is distinct from — albeit related to — that of
submitting the amendments to the people for their ratification; and that
the 3/4 voting requirement applies only to the first step, not to the second
one.
It follows that the submission of proposed amendments can be done thru
an ordinary statute passed by Congress. The Constitution does not
expressly state by whom the submission shall be undertaken; the rule is
that a power not lodged elsewhere under the Constitution is deemed to
reside with the legislative body, under the doctrine of residuary powers.
Congress therefore validly enacted Republic Act 4913 to fix the details of
the date and manner of submitting the proposed amendments to the
people for their ratification. Since it does not "propose amendments" in
the sense referred to by Sec. 1, Art. XV of the Constitution, but merely
provides for how and when the amendments, already proposed, are
going to be voted upon, the same does not need the 3/4 vote in joint
session required in Sec. 1, Art. XV of the Constitution. Furthermore,
Republic Act 4913 is an appropriation measure. Sec. 6 thereof
appropriates P1,000,000 for carrying out its provisions. Sec. 18, Art. VI of
the Constitution states that "All appropriation . . . bills shall originate
exclusively in the House of Representatives". Republic Act 4913,
therefore, could not have been validly adopted in a joint session,
reinforcing the view that Sec. 1, Art. XV does not apply to such a
measure providing for the holding of the election to ratify the proposed
amendments, which must perforce appropriate funds for its purpose.
Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends
against substantive due process. An examination of the provisions of the
law shows no violation of the due process clause of the Constitution. The
publication in the Official Gazette at least 20 days before the election, the
posting of notices in public buildings not later than October 14, 1967, to
remain posted until after the elections, the placing of copies of the
proposed amendments in the polling places, aside from printing the same
at the back of the ballot, provide sufficient opportunity to the voters to
cast an intelligent vote on the proposal. Due process refers only to
providing fair opportunity; it does not guarantee that the opportunity given
will in fact be availed of; that is the look-out of the voter and the
responsibility of the citizen. As long as fair and reasonable opportunity to
be informed is given, and it is, the due process clause is not infringed.
Non-printing of the provisions to be amended as they now stand, and the
printing of the full proposed amendments at the back of the ballot instead
of the substance thereof at the face of the ballot, do not deprive the voter
of fair opportunity to be informed. The present wording of the Constitution
is not being veiled or suppressed from him; he is conclusively presumed
to know them and they are available should he want to check on what he
is conclusively presumed to know. Should the voters choose to remain
ignorant of the present Constitution, the fault does not lie with Congress.
For opportunity to familiarize oneself with the Constitution as it stands
has been available thru all these years. Perhaps it would have been
more convenient for the voters if the present wording of the provisions
were also to be printed on the ballot. The same however is a matter of
policy. As long as the method adopted provides sufficiently reasonable
chance to intelligently vote on the amendments, and I think it does in this
case, it is not constitutionally defective.
Petitioner Gonzales' other arguments touch on the merits or wisdom of
the proposed amendments. These are for the people in their sovereign
capacity to decide, not for this Court.
Two arguments were further advanced: first, that Congress cannot both
call a convention and propose amendments; second, that the present
Congress is a de facto one, since no apportionment law was adopted
within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not being de
jure, they cannot propose amendments, it is argued.
As to the first point, Sec. 1 of Art. XV states that Congress "may propose
amendments or call a convention for that purpose". The term "or",
however, is frequently used as having the same meaning as "and"
particularly in permissive, affirmative sentences so that the interpretation
of the word "or" as "and" in the Constitution in such use will not change
its meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411,
108 La, 442). And it should be pointed out that the resolutions proposing
amendments (R.B.H. Nos. 1 and 3) are different from that calling for a
convention (R.B.H. No. 2). Surely, if Congress deems it better or wise to
amend the Constitution before a convention called for is elected, it should
not be fettered from doing so. For our purposes in this case, suffice it to
note that the Constitution does not prohibit it from doing so.
As to the second argument, it is also true that Sec. 5 of Art. VI of the Dinglasan,4 in ascertaining the meaning to be given the Emergency
Constitution provides in part that "The Congress shall by law make an Powers Act,5 one should not ignore what would ensue if a particular
apportionment within three years after the return of every enumeration, mode of construction were followed. As he so emphatically stated, "We
and not otherwise". It however further states in the next sentence: "Until test a rule by its results."
such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed
The consequences of a judicial veto on the then proposed amendment
by law for the National Assembly, who shall be elected by the qualified
on the economic survival of the country, an erroneous appraisal it turned
electors from the present assembly districts." The failure of Congress,
out later, constituted an effective argument for its submission. Why not
therefore, to pass a valid redistricting law since the time the above
then consider the question political and let the people decide? That
provision was adopted, does not render the present districting illegal or
assumption could have been indulged in. It could very well be the
unconstitutional. For the Constitution itself provides for its continuance in
inarticulate major premise. For many it did bear the stamp of judicial
such case, rendering legal and de jure the status quo.
statesmanship.

For the above reasons, I vote to uphold the constitutionality of Republic

The opinion of Chief Justice Concepcion renders crystal-clear why as of
Act 4913, and fully concur with the opinion of the Chief Justice.
this date and in the foreseeable future judicial inquiry to assure the
utmost compliance with the constitutional requirement would be a more
appropriate response.

FERNANDO, J., concurring:

At the outset, we are faced with a question of jurisdiction. The opinion SANCHEZ, J., in separate opinion:
prepared by the Chief Justice discusses the matter with a fullness that
erases doubts and misgivings and clarifies the applicable principles. A
Right at the outset, the writer expresses his deep appreciation to Mr.
few words may however be added.
Justice Calixto O. Zaldivar and Mr. Justice Fred Ruiz Castro for their
invaluable contribution to the substance and form of the opinion which
We start from the premise that only where it can be shown that the follows.
question is to be solved by public opinion or where the matter has been
left by the Constitution to the sole discretion of any of the political
Directly under attack in this, a petition for prohibition, is the
branches, as was so clearly stated by the then Justice Concepcion
constitutionality of Republic Act 4913, approved on June 17, 1967. This
in Tañada v. Cuenco,1 may this Court avoid passing on the issue before
Act seeks to implement Resolutions 1 and 3 adopted by the Senate and
it. Whatever may be said about the present question, it is hard to speak
the House of Representatives on March 16, 1967 with the end in view of
with certitude considering Article XV, that Congress may be entrusted
amending vital portions of the Constitution.
with the full and uncontrolled discretion on the procedure leading to
proposals for an amendment of the Constitution.
Since the problem here presented has its roots in the resolutions
2 aforesaid of both houses of Congress, it may just as well be that we
It may be said however that in Mabanag v. Lopez Vito,  this Court
recite in brief the salient features thereof. Resolution No. 1 increases the
through Justice Tuason followed Coleman v. Miller,3 in its holding that
membership of the House of Representatives from 120 to 180 members,
certain aspects of the amending process may be considered political. His
and immediately apportions 160 seats. A companion resolution is
opinion quoted with approval the view of Justice Black, to which three
Resolution No. 3 which permits Senators and Congressmen — without
other members of the United States Supreme Court agreed, that the
forfeiting their seats in Congress — to be members of the Constitutional
process itself is political in its entirety, "from submission until an
Convention1 to be convened, as provided in another resolution —
amendment becomes part of the Constitution, and is not subject to
Resolution No. 2. Parenthetically, two of these proposed amendments to
judicial guidance, control or interference at any point." In a sense that
the Constitution (Resolutions I and 3) are to be submitted to the people
would solve the matter neatly. The judiciary would be spared the at times
for their ratification next November 14, 1967. Resolution No. 2 just
arduous and in every case soul-searching process of determining
adverted to calls for a constitutional convention also to propose
whether the procedure for amendments required by the Constitution has
amendments to the Constitution. The delegates thereto are to be elected
been followed.
on the second Tuesday of November 1970; the convention to sit on
June 1, 1971; and the amendments proposed by the convention to be
At the same time, without impugning the motives of Congress, which submitted to the people thereafter for their ratification.
cannot be judicially inquired into at any rate, it is not beyond the realm of
possibility that a failure to observe the requirements of Article XV would
Of importance now are the proposed amendments increasing the number
occur. In the event that judicial intervention is sought, to rely
of members of the House of representatives under Resolution No. 1, and
automatically on the theory of political question to avoid passing on such
that in Resolution No. 3 which gives Senators and Congressmen the right
a matter of delicacy might under certain circumstances be considered,
to sit as members of the constitutional convention to be convened on
and rightly so, as nothing less than judicial abdication or surrender.
June 1, 1971. Because, these are the two amendments to be submitted
to the people in the general elections soon to be held on November 14,
What appears regrettable is that a major opinion of an esteemed jurist, 1967, upon the provisions of Section 1, Republic Act 4913, which reads:
the late Justice Tuason, would no longer be controlling. There is comfort
in the thought that the view that then prevailed was itself a product of the
The amendments to the Constitution of the Philippines
times. It could very well be that considering the circumstances existing in
proposed by the Congress of the Philippines in Resolutions of
1947 as well as the particular amendment sought to be incorporated in
both Houses Numbered One and Three, both adopted on
the Constitution, the parity rights ordinance, the better part of wisdom in
March sixteen, nineteen hundred and sixty- seven, shall be
view of the grave economic situation then confronting the country would
submitted to the people for approval at the general election
be to avoid the existence of any obstacle to its being submitted for
which shall be held on November fourteen, nineteen hundred
ratification. Moreover, the Republic being less than a year old, American
and sixty- seven, in accordance with the provisions of this Act.
Supreme Court opinions on constitutional questions were-invariably
accorded uncritical acceptance. Thus the approach followed by Justice
Tuason is not difficult to understand. It may be said that there is less Republic Act 4913 projects the basic angle of the problem thrust upon us
propensity now, which is all to the good, for this Court to accord that — the manner in which the amendments proposed by Congress just
much deference to constitutional views coming from the quarter. adverted to be brought to the people's attention.

Nor is this mode of viewing the opinion of Justice Tuason to do injustice First, to the controlling constitutional precept. In order that proposed
to his memory. For as he stated in another major opinion in Araneta v. amendments to the Constitution may become effective, Section 1, Article
XV thereof commands that such amendments must be "approved by a
majority of the votes cast at an election at which amendments
are submitted to the people for their ratification."2 The accent is on two
words complementing each other, namely, "submitted" and "ratification."
1. We are forced to take a long hard look at the core of the problem
facing us. And this, because the amendments submitted are
transcendental and encompassing. The ceiling of the number of
Congressmen is sought to be elevated from 120 to 180 members; and
Senators and Congressmen may run in constitutional conventions
without forfeiting their seats. These certainly affect the people as a
whole. The increase in the number of Congressmen has its proportional
increase in the people's tax burdens. They may not look at this with favor,
what with the constitutional provision (Section 5, Article VI) that Congress
"shall by law make an apportionment", without the necessity of disturbing
the present constitutionally provided number of Congressmen. People in
Quezon City, for instance, may balk at the specific apportionment of the
160 seats set forth in Resolution No. 1, and ask for a Congressman of
their own, on the theory of equal representation. And then, people may
question the propriety of permitting the increased 180 Congressmen from
taking part in the forthcoming constitutional convention and future
conventions for fear that they may dominate its proceedings. They may
entertain the belief that, if at all, increase in the number of Congressmen
should be a proper topic for deliberation in a constitutional convention
which, anyway, will soon take place. They probably would ask: Why the
hurry? These ponderables require the people's close scrutiny.
2. With these as backdrop, we perforce go into the philosophy behind the
constitutional directive that constitutional amendments be submitted to
the people for their ratification.
A constitutional amendment is not a temporary expedient. Unlike a
statute which may suffer amendments three or more times in the same
year, it is intended to stand the test of time. It is an expression of the
people's sovereign will.
And so, our approach to the problem of the mechanics of submission for
ratification of amendments is thatreasoning on the basis of the spirit of
the Constitution is just as important as reasoning by a strict adherence to
the phraseology thereof. We underscore this, because it is within the
realm of possibility that a Constitution maybe overhauled. Supposing
three-fourths of the Constitution is to be amended. Or, the proposal is to
eliminate the all important; Bill of Rights in its entirety. We believe it to be
beyond debate that in some such situations the amendments ought to
call for a constitutional convention rather than a legislative proposal. And
yet, nothing there is in the books or in the Constitution itself. which would
require such amendments to be adopted by a constitutional convention.
And then, too, the spirit of the supreme enactment, we are sure, forbids
that proposals therefor be initiated by Congress and thereafter presented
to the people for their ratification.
In the context just adverted to, we take the view that the words
"submitted to the people for their ratification", if construed in the light of
the nature of the Constitution — a fundamental charter that is legislation
direct from the people, an — expression of their sovereign will — is that it
can only be amended by the people expressing themselves according to
the procedure ordained by the Constitution. Therefore, amendments
must be fairly laid before the people for their blessing or spurning. The
people are not to be mere rubber stamps. They are not to vote blindly.
They must be afforded ample opportunity to mull over the original
provisions compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free from
the incubus of extraneous or possibly in insidious influences. We believe,
the word "submitted" can only mean that the government, within its
maximum capabilities, should strain every effort to inform very citizen of
the provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be understood
as saying that, if one citizen or 100 citizens or 1,000 citizens cannot be
reached, then there is no submission within the meaning of the word as
intended by the framers of the Constitution. What the Constitution in
effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its structural
framework to enlighten the people, educate them with respect to their act
of ratification or rejection. For, as we have earlier stated, one thing
is submission and another is ratification. There must be fair submission,
intelligent, consent or rejection. If with all these safeguards the people
still approve the amendment no matter how prejudicial it is to them, then
so be it. For, the people decree their own fate.
Aptly had it been said:
. . . The great men who builded the structure of our state in this
respect had the mental vision of a good Constitution voiced by
Judge Cooley, who has said "A good Constitution should
beyond the reach of temporary excitement and popular caprice
or passion. It is needed for stability and steadiness; it must
yield to the thought of the people; not to the whim of the
people, or the thought evolved the excitement or hot blood, but
the sober second thought, which alone, if the government is to
be safe, can be allowed efficiency. . . .Changes in government
are to be feared unless the benefit is certain. As Montaign
says: "All great mutations shake and disorder a state. Good
does not necessarily succeed evil; another evil may succeed
and a worse." Am. Law Rev. 1889, p. 3113
3. Tersely put, the issue before us funnels down to this proposition: If the
people are not sufficiently informed of the amendments to be voted upon,
to conscientiously deliberate thereon, to express their will in a genuine
manner can it be said that in accordance with the constitutional mandate,
"the amendments are submitted to the people for their ratification?" Our
answer is "No".
We examine Republic Act 4913, approved on June 17, 1967 — the
statute that submits to the people the constitutional amendments
proposed by Congress in Resolutions 1 and 3. Section 2 of the Act
provides the manner of propagation of the nature of the amendments
throughout the country. There are five parts in said Section 2, viz:
(1) The amendment shall be published in three consecutive
issues of the Official Gazette at least twenty days prior to the
election.
(2) A printed copy thereof shall be posted in a conspicuous
place in every municipality, city and provincial office building
and in every polling place not later than October fourteen,
nineteen hundred and sixty-seven, and shall remain posted
therein until after the election.
(3) At least five copies of the said amendments shall be kept in
each polling place to be made available for examination by the
qualified electors during election day.
(4) When practicable, copies in the principal native languages,
as may be determined by the Commission on Elections, shall
be kept in each polling place.
(5) The Commission on Elections shall make available copies
of said amendments in English, Spanish and, whenever
practicable, in the principal native languages, for free
distribution.
A question that comes to mind is whether the procedure for
dissemination of information regarding the amendments effectively brings
the matter to the people. A dissection of the mechanics yields disturbing
thoughts. First, the Official Gazette is not widely read. It does not reach
the barrios. And even if it reaches the barrios, is it available to all? And if
it is, would all under stand English? Second, it should be conceded that
many citizens, especially those in the outlying barrios, do not go to
municipal, city and/or provincial office buildings, except on special
occasions like paying taxes or responding to court summonses. And if
they do, will they notice the printed amendments posted on the bulletin
board? And if they do notice, such copy again is in English (sample
submitted to this Court by the Solicitor General) for, anyway, the statute
does not require that it be in any other language or dialect. Third, it would
not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts
it, voting time is not study time. And then, who can enter the polling
place, except those who are about to vote? Fourth, copies in the principal
native languages shall be kept in each polling place. But this is not, as
Section 2 itself implies, in the nature of a command because such copies
shall be kept therein only "when practicable" and "as may be determined
by the Commission on Elections." Even if it be said that these are
available before election, a citizen may not intrude into the school
building where the polling places are usually located without disturbing
the school classes being held there. Fifth, it is true that the Comelec is REYES, J.B.L., J., concurring:
directed to make available copies of such amendments in English,
Spanish or whenever practicable, in the principal native languages, for
I concur in the result with the opinion penned by Mr. Justice Sanchez. To
free distribution. However, Comelec is not required to actively distribute
approve a mere proposal to amend the Constitution requires (Art. XV) a
them to the people. This is significant as to people in the provinces,
three-fourths (3/4) vote of all the members of each legislative chamber,
especially those in the far-flung barrios who are completely unmindful of
the highest majority ever demanded by the fundamental charter, one
the discussions that go on now and then in the cities and centers of
higher even than that required in order to declare war (Sec. 24, Article
population on the merits and demerits of the amendments. Rather,
VI), with all its dire consequences. If such an overwhelming majority, that
Comelec, in this case, is but a passive agency which may hold copies
was evidently exacted in order to impress upon all and sundry the
available, but which copies may notbe distributed at all. Finally, it is of
seriousness of every constitutional amendment, is asked for a proposal
common knowledge that Comelec has more than its hands full in these
to amend the Constitution, I find it impossible to believe that it was ever
pre-election days. They cannot possibly make extensive distribution.
intended by its framers that such amendment should be submitted and
ratified by just "a majority of the votes cast at an election at which the
Voters will soon go to the polls to say "yes" or "no". But even the official amendments are submitted to the people for their ratification", if the
sample ballot submitted to this Court would show that only the concentration of the people's attention thereon to be diverted by other
amendments are printed at the back. And this, in pursuance to Republic extraneous issues, such as the choice of local and national officials. The
Act 4913 itself. framers of the Constitution, aware of the fundamental character thereof,
and of the need of giving it as much stability as is practicable, could have
only meant that any amendments thereto should be debated, considered
Surely enough, the voters do not have the benefit of proper notice of the
and voted upon at an election wherein the people could devote undivided
proposed amendments thru dissemination by publication in extenso.
attention to the subject. That this was the intention and the spirit of the
People do not have at hand the necessary data on which to base their
provision is corroborated in the case of all other constitutional
stand on the merits and demerits of said amendments.
amendments in the past, that were submitted to and approved in special
elections exclusively devoted to the issue whether the legislature's
We, therefore, hold that there is no proper submission of the proposed amendatory proposals should be ratified or not.
constitutional amendments within the meaning and intendment of Section
1, Article XV of the Constitution.
Dizon, Angeles, Zaldivar and Castro, JJ., concur.

4. Contemporary history is witness to the fact that during the present

election campaign the focus is on the election of candidates. The
constitutional amendments are crowded out. Candidates on the
homestretch, and their leaders as well as the voters, gear their undivided
efforts to the election of officials; the constitutional amendments cut no
ice with them. The truth is that even in the ballot itself, the space
accorded to the casting of "yes" or "no" vote would give one the
impression that the constitutional amendments are but a bootstrap to the
electoral ballot. Worse still, the fortunes of many elective officials, on the
national and local levels, are inextricably intertwined with the results of
the votes on the plebiscite. In a clash between votes for a candidate and
conscience on the merits and demerits of the constitutional amendments,
we are quite certain that it is the latter that will be dented.

5. That proper submission of amendments to the people to enable them

to equally ratify them properly is the meat of the constitutional
requirement, is reflected in the sequence of uniform past practices. The
Constitution had been amended thrice — in 1939, 1940 and 1947. In
each case, the amendments were embodied in resolutions adopted by
the Legislature, which thereafter fixed the dates at which the proposed
amendments were to be ratified or rejected. These plebiscites have been
referred to either as an "election" or "general election". At no time,
however, was the vote for the amendments of the Constitution held
simultaneously with the election officials, national or local. Even with
regard to the 1947 parity amendment; the record shows that the sole
issue was the 1947 parity amendment; and the special elections
simultaneously held in only three provinces, Iloilo, Pangasinan and
Bukidnon, were merely incidental thereto.

In the end we say that the people are the last ramparts that guard against
indiscriminate changes in the Constitution that is theirs. Is it too much to
ask that reasonable guarantee be made that in the matter of the
alterations of the law of the land, their true voice be heard? The answer
perhaps is best expressed in the following thoughts: "It must be
remembered that the Constitution is the people's enactment. No
proposed change can become effective unless they will it so through the
compelling force of need of it and desire for it."4

For the reasons given, our vote is that Republic Act 4913 must be
stricken down as in violation of the Constitution.

Zaldivar and Castro, JJ., concur. 

Reyes, J.B.L., Dizon and Angeles, JJ., concur in the result.

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 81188 August 30, 1988
TAGUM DOCTORS ENTERPRISES, petitioner,  for reconsideration filed by the private respondent and thereafter
vs.
GREGORIO APSAY, THE SECRETARY OF ENVIRONMENT AND
NATURAL RESOURCES, AND THE EXECUTIVE SECRETARY,
BUREAU OF LANDS, respondents.
Numeriano Tanopo Jr. for petitioner.
Florante M. de Castro for private respondent.
The Solicitor General for private respondent.
CRUZ, J.:
While there are cases where we have reversed the administrative
authorities for grave abuse of discretion under Rule 65 of the Rules of
Court, the general policy of this Court is to sustain their decisions not
only on the basis of the doctrine of separation of powers but also for their
presumed knowledgeability, and even expertise, in the laws they are
entrusted to enforce. In the case at bar, for reasons that will appear
presently, we shall apply the rule rather than the exception.
The relevant facts are as follows:
1. On August l4, 1967, the petitioner corporation,through its treasurer,
filed with the Bureau of Lands a Miscellaneous Sales Application
covering Lots No. 1277 and 1296 in Magugpo Tagum, Davao. 1
2. On June 19, 1972, the said lots were awarded to the petitioner. 2
3. On September 13, 1972, the private respondent, Gregorio Apsay, filed
a formal protest alleging among others that he was the actual possessor
of Lot No. 1296. 3
4. On April 22, 1980, the Director of Lands dismissed Apsay's protest for
lack of merit but at the same time canceled the award in favor of the
petitioner on the ground that it was disqualified to acquire public lands
under the 1973 Constitution. 4
5. On June 29,1987, this decision was affirmed on appeal by the Ministry
of Natural Resources. 5
6. On January 28,1985, Apsay's motion for reconsideration was denied.  6
7. On May 22, 1986, acting on Apsay's second motion for
reconsideration, the Minister reversed himself and: (a) set aside the
decision of the Director of Lands dated April 22, 1980; (b) declared the
public bidding over the subject properties null and void; (c) canceled the
order of award issued in favor of the petitioner corporation on the
groundinter alia that it was not qualified to acquire public lands; and (d)
directed the rebidding of the land in dispute. Copy of this order was
received by the petitioner on May 29, 1986. 7
8. On August 8, 1986, the petitioner appealed to the Office of the
President. 8
9. On July 24, 1987, its appeal was dismissed by the Deputy Executive
Secretary on the ground that it was filed beyond the 30-day reglementary
period. 9
10. On October 5, 1987, the petitioner's motion for reconsideration was
denied by the Office of the President. 10
The petitioner is now before us on certiorari to challenge the cancellation
of its original award and the dismissal of its appeal to the Office of the
President. Specifically, it claims that the public respondents committed
grave abuse of discretion in: a) resolving a non-existent second motion
dismissing his appeal for tardiness; and b) canceling the original award in
its favor on the ground of invalidity of the sale and its ineligibility to
acquire public lands.
First, the procedural grounds.
We see no arbitrariness tainting the factual finding of the Deputy
Executive Secretary that there was a second motion for reconsideration
filed with the Ministry on February 21, 1985, as this is borne by the
records. This motion was denied on May 22,1986. Assuming, as the
petitioner contends, that it did not receive a copy of this second motion, it
nevertheless cannot deny that it received a copy of the order of denial
and so had all the opportunity to raise its objection in a seasonable
appeal. It did not do so until it was too late. As the Office of the President
found:
The records clearly bear that TDEI's counsel
received a copy of the MNR's order of May 22, 1986,
on May 29, 1986. TDEI, however, filed its notice of
appeal only on July 23, 1986, and submitted its
appeal memorandum on August 8, 1986. From the
time TDEI's counsel received a copy of the said
order until he filed the notice of appeal, fifty-four (54)
days had already elapsed. The appeal was thus filed
beyond the reglementary period of thirty (30) days
provided for in Executive Order No. 19, series of
1966, as amended. 11
The petitioner claims that no second motion for reconsideration is
allowed under Administrative Order No. 1, series of 1982, of the Ministry
of Natural Resources, and Executive Order No. 19, series of 1966, as
amended, (now Administrative Order No. 18, series of 1987) but this too
is untenable. A reading of these measures will readily show that the first
refers to decisions of the Directors of Lands and the second to decisions
of the Office of the President, and that neither of them covers decisions
of the Ministry itself. Admission of the second motion for reconsideration
was therefore discretionary on the part of the Minister and was in fact in
keeping with the general practice and procedure.
The question of improper compliance with the requirements for notice of
the public bidding also is a factual issue that this Court is not disposed to
review in the absence of any showing that it was arrived at capriciously
by the public respondents. On the contrary, we agree that there were
really irregularities committed in connection with this matter, as the
Minister explained, thus:
A close scrutiny of the certification issued by the
Municipal Treasurer of Tagum, Davao, however,
reveals a glaring anomaly in the posting of the
questioned notice. FIRST, it is impossible that the
said notice could be posted on November 26, 1969
because this notice to be posted was received by the
District Land Officer only on December 15, 1969.
SECOND, the Municipal Treasurer could not certify
that said notice remained so posted until February
12, 1970 because he issued the said certification on
January 12, 1970, one month before the expiration
of the period of posting. 12
The more substantial question, of course, is the eligibility of the petitioner
to acquire public lands in view of the objection raised by the public
respondents on the basis of Article XIV, Section 11, of the 1973
Constitution. This allowed private corporations only to hold by lease (and
so impliedly prohibited them from acquiring by purchase or homestead, Lands of the public domain are classified into
as in the case of private individuals) lands of the public domain. The agricultural, forest or timber, mineral lands, and
provision read in full as follows: national parks. Agricultural lands of the public
domain may be further classified by law according to
the uses to which they may be devoted. Alienable
SEC. 11. The Batasang Pambansa, taking into
lands of the public domain shall be limited to
account conservation, ecological, and developmental
agricultural lands. Private corporations or
requirements of the natural resources, shall
associations may not hold such alienable lands of
determine by law the size of lands of the public
the public domain except by lease, for a period not
domain which may be developed, held or acquired
exceeding twenty-five years, renewable for not more
by, or leased to, any qualified individual, corporation,
than twenty-five years, and not to exceed one
or association, and the conditions therefor. No
thousand hectares in area. Citizens of the
private corporation or association may hold alienable
Philippines may lease not more than five hundred
lands of the public domain except by lease not to
hectares, or acquire not more than twelve hectares
exceed one thousand hectares in area; nor may any
thereof by purchase, homestead or grant.
citizen hold such lands by lease in excess of five
hundred hectares or acquire by purchase or
homestead in excess of twenty-four hectares. No It is clear that under the provisions of either the 1973 or the 1987
private corporation or association may hold by lease, Constitution as prospectively applied the petitioner is absolutely
concession, license, or permit, timber or forest lands disqualified from purchasing lands of the public domain. Hence, it is not
and other timber or forest resources in excess of one necessary even to resolve the other questions of whether it is permitted
hundred thousand hectares; however, such area to acquire lands under its articles of incorporation or the Corporation
may be increased by the Batasang Pambansa upon Code in general or, even less important, if its treasurer was authorized to
recommendation of the National Economic and file the sales application on its behalf.
Development Authority.
To recapitulate, the appeal was properly dismissed by the Office of the
The petitioner insists this provision is not applicable to it as it acquired President for tardiness. More significant, no vested rights were acquired
the lots on June 19, 1972, before the Constitution of 1973 became over the original award in 1972 because it was invalidly granted owing to
effective, and it cannot now be deprived of its vested rights over the the demonstrated irregularities attending the public bidding. Indeed, even
property by retroactive application of the prohibition. It contends this if such procedural defects were rectified, the award would still be
would violate due process and invokes in support of its contention the unconstitutional because private corporations are not allowed now to
case of Ayog v. Cusi. 13 acquire lands of the public domain but may only hold them by lease up to
one thousand hectares only and for not more than fifty years in all.
In the Ayog case, the Biñan Development Corporation was on January
21, 1953, after a valid public bidding awarded a parcel of public land on WHEREFORE, the petition is DISMISSED, with costs against the
the basis of its 1951 sales application. On July 18, 1961, it paid in full the petitioner.
purchase price of P l0,000.00 and on November 10, 1961, a final
investigation report was filed in the Bureau of Lands stating that the
SO ORDERED.
corporation had complied with the cultivation and payment requirements.
However, it was only on August 14, 1975, or thirteen years later, when
the sales patent for the land was issued to the corporation, and the Narvasa, Griño-Aquino and Medialdea, JJ., concur.
question then arose as to whether it was still qualified to receive it under
the provisions of the 1973 Constitution which were already in force at that
Gancayco, J., is on leave.
time. Agreeing with the Minister of Natural Resources and the Director of
Lands, this Court held "that the said constitutional provision has no
retroactive application to the sales application of Biñan Development Co.,
Inc. because it had already acquired a vested right in the land applied for
at the time the 1973 Constitution took effect."

That decision is not applicable to the case at bar because it involved a

right validly acquired after compliance with all the requirements of the
Public Land Act, including the procedure to be observed prior to the
public bidding, before the 1973 Constitution became effective. In the
present case, the finding of the public respondents was precisely that the
sale was invalid because of non-compliance with the requisites for the
posting of notices as laid down in the Public Land Act; hence, the
petitioner acquired no title under the 1935 Constitution which it can now
claim as a vested right.

It is noteworthy that in the Ayog case, both the Bureau of Lands and the
Ministry of Natural Resources agreed that the sales patent should issue
to the awardee because there was no irregularity whatsoever in the
proceedings leading to its grant. By contrast, it is these very same offices
that are opposed th the petitioner's claims because of the anomalies
noted in the conduct of the public bidding that led to the cancellation of
the award.

While it is true that due process protects vested rights, and this Court
would be the first to stress this basic principle, it is no less true that the
guarantee cannot be invoked when, as in the case at bar, no right has
been acquired at all because of non-observance of the requirements of
the law.

Significantly, the aforequoted provision is retained with some modification

in Article XII, Section 3, of the 1987 Constitution, reading in part as
follows: