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CONCURRING AND DISSENTING OPINION

PUNO, J.:

I concur in the result. I do appreciate the fine legal disquisition of Mr. Justice Mendoza to justify the dismissal of the case at bar. Nevertheless, I have to express my views on the alleged non-justiciability of the issue posed by the petitioner as well as the applicability of the archaic enroll bill doctrine in light of what I perceive as new wrinkles in our law brought about by the 1987 Constitution and the winds of changing time.

I

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

Rightly, the ponencial uses the 1891 case of US v. Ballin,¹ as a window to review the issues before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to review congressional rules.² It held:

xxx

The Constitution, in the same section, provides, that each house may determine the rules of its proceedings. It appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules:

Rule XV

3. On the demand of any member, or at the suggestion of the Speaker, the names of member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)

The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceedings established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which ones exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

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

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

xxx

3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate; but if a notification of the confirmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notification to the Senate. Any motion to reconsider that vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a final disposition of such motion.

4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise ordered by the Senate.

It appears that the nomination of Mr. Smith as member of the Federal Power Commission has been confirmed by the US Senate. The resolution of confirmation was sent to the US President who then signed the appointment of Mr. Smith. The Senate, however, reconsidered the confirmation of Mr. Smith and requested the President to return its resolution of confirmation. The President refused. A petition for quo warrnto was filed against Mr. Smith. The Court, speaking thru Mr. Justice Brandeis, assumed jurisdiction over the dispute relying on Ballin. It exercised jurisdiction although the question primarily at issue relates to the construction of the dispute relying on Ballin. It exercised jurisdiction although the question primarily at issue relates to the construction of the applicable rules, not to their constitutionality. Significantly, the Court rejected the Senate interpretation of its own rules even while it held that it must be accorded the most sympathetic consideration.

xxx

Sixth. To place upon the standing rules of the Senate a construction different from that adopted by the Senate itself when the present case was under debate is a serious and delicate exercise of judicial power. The Constitution commits to the Senate the power to make its own rule; and it is not the function of the Court to say that another rule would be better. A rule designed to ensure due deliberation in the performance of the vital function of advising and consenting to nominations for public office, moreover, should receive from the Court the most sympathetic consideration. But the reasons, above stated, against the Senates construction seem to us compelling. We are confirmed in the view we have taken by the fact, since the attempted reconsideration of Smiths confirmation, the Senate itself seems uniformly to have treated the ordering of immediate notification to the President as tantamount to authorizing him to proceed to perfect the appointment.

Smith, of course, involves the right of a third person and its ruling falls within the test spelled out in Ballin.

Smith was followed by the 1948 case of Christoffel v. United States.⁴ Christoffel testified before the Committee on Education and Labor of the House of Representive. He denied he was a communist and was charged with perjury in a regular court. He adduced evidence during the trial that the committee had no quorum when the perjurious statement was given. Nonetheless, he was convicted in view of the judges charge to the members of the jury that to find Christoffel guilty, they had to find beyond a reasonable doubt that

x x x

x x x the defendant Christoffel appeared before a quorum of at least thirteen members of the said Committee, and that at least that number must have been actually and physically present if such a Committee so met, that is, if thirteen members did meet at the beginning of the afternoon session of March 1, 1947, and thereafter during the progress of the hearing some of them left temporarily or otherwise and no question was raised as to the lack of quorum, then the fact that the majority did not remain there would not affect, for the purposes of this case, the existence of that the Committee as a competent tribunal provided that before the oath was administered and before the testimony of the defendant was given there were present as many as 13 members of that Committee at the beginning of the afternoon session.

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

x x x

Congressional practice in the transaction of ordinary legislative business is of course none of our concern, and by the same token the considerations which may lead Congress as a matter of legislative practice to treat as valid the conduct of its committees do not control the issue before us. The question is neither what rules Congress may establish for its own governance, not whether presumptions of continuity may protect the validity of its legislative conduct. The question is rather what rules the House has established and whether they have been followed. It of course has the power to define what tribunal is competent to exact testimony and the conditions that establish its competency to do so. The heart of this case is that by the charge that was given it was allowed to assume that the conditions of competency were satisfied even though the basis in fact was not established in the face of a possible finding that the facts contradicted the assumption.

We are measuring a conviction of crime by the statute which defined it. As a consequence of this conviction, petitioner was sentenced to imprisonment for a term or two to six years. An essential part of a procedure which can be said fairly to inflict such a punishment is that all the elements of the crime charged shall be proved beyond reasonable doubt. An element of the crime charged in the instant indictment is the presence of a complete tribunal, and the trial court proper so instructed the jury. The House insist that to be such a tribunal a committee must consist of quorum, and we agree with the trial courts charge that to convict, the jury had to be satisfied beyond a reasonable doubt that there were actually and physically present a majority of the committee.

Then to charge, however, that such requirement is satisfied by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need to be present when the offense is committed. This is not only seems to us contrary to the rules and practice of the Congress but denies petitioner a fundamental right. That right is that he be convicted of crime only on proof of all elements of the crime charged against him. A tribunal that is not competent is no tribunal, and it unthinkable that such a body can be an instrument of criminal conviction.

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

The US Supreme Court pursued the same line in 1963 in deciding the case of Yellin v. United States.⁵ Yellin was indicted on five counts of willfully refusing to answer questions put to him by a sub-committee of the House Committee on Un-American Activities. He was convicted by the District Court of contempt of Congress on four counts. The conviction was affirmed by the Court of Appeals for the 7^th circuit. On certiorari, he assailed his conviction on the ground that the Committee illegally denied his request to be heard in executive session. He alleged there was a violation of Committee Rule IV which provides that if a majority of Committee or sub-committee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or admissibility of conducting such interrogation thereafter in a public hearing. In a 5-4 decision, the Court, speaking thru Mr. Chief Justice Warren, held:

x x x

Yellin should be permitted the same opportunity for judicial review when he discovers at trial that his rights have been violated. This is especially so when the Committees practice leads witnesses to misplaced reliance upon its rules. When reading a copy of the committees rules, which must be distributed to every witness under Rule XVII, the witness reasonable expectation is that the Committee actually does what it purports to do, adhere to its own rules. To foreclose a defense based upon those rules, simply because the witness was deceived by the Committees appearance of regularity, is not fair. The committee prepared the groundwork for prosecution in Yellins case meticulously. It is not too exacting to require that the Committee be equally meticulous in obeying its own rules.

It additionally bears stressing that the United States, the judiciary has pruned the political thicket. In the benchmark case of Baker v. Carr,⁶ the US Supreme Court assumed jurisdiction to hear a petition for re-apportiontment of the Tennessee legislature ruling that the political question doctrine, a tool for maintenance of government order, will not be so applied as to promote only disorder and that the courts cannot reject as no law suit, a bonafide controversy as to whether some action denominated political exceeds constitutional authority.

In the Philippine setting, there is a more compelling reason for courts to categorically reject the political question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our Constitution was intentionally cobbled to empower courts x x x to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. This power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted this enormous power to our courts in view of our experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government. In cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubeity that the government can no longer invoke the political question defense. Section 18 of Article VII completely eliminated this defense when it provided:

x x x

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

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

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

x x x

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

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

Former Chief Justice Roberto R. Concepcion, the sponsor of this provision in the Constitutional Commission explained the sense and the reach of judicial power a s follows:

x x x

x x x In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

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

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

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

More, it depoliticalized appointments in the judiciary by creating the Judicial and Bar Council which was tasked with screening the list of prospective appointees to the judiciary. The power of confirming appointments to the judiciary was also taken away from Congress. The President was likewise given specific time to fill up vacancies in the judiciary ninety (90) days from the occurrence of the vacancy in case of the Supreme Court and ninety (90) days from the submission of the list of recommendees by the Judicial and Bar Council in case of vacancies in the lower courts. To further insulate appointments in the judiciary from the virus of politics, the Supreme Court was given the power to appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. And to make the separation of the judiciary from other branches of government more watertight, it prohibited members of the judiciary to be x x x designated to any agency performing quasi judicial or administrative functions. While the Constitution strengthened the sinews of the Supreme Court, it reduced the powers of the two other branches of the government, especially the Executive. Notable powers of the President clipped by the Constitution is his power to suspend the writ of habeas corpus and to proclaim martial law. The exercise of this power is now subject to revocation by Congress. Likewise, the sufficiency of the factual basis for the exercise of said power may be reviewed by this Court in an appropriate proceeding filed by any citizen.

The provision defining judicial power as including the duty of the courts of justice to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government constitutes the capstone of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the other branches of the government. This provision was dictated by our experience under martial law which taught us that a stronger and more independent judiciary is needed to abort abuses in government. x x x.

x x x

In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed this Court from passivity to activism. This transformation, dictated by our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973 Constitutions, this Court approached constitutional violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated to approach constitutional violations not by finding out what it should do but what it must do. The Court must discharge this solemn duty by not resuscitating a past that petrifies the present.

I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as the case at bar once more calls us to define the parameters of our power to review violations of the rules of the House. We will not be true to our trust as the last bulwark against government abuses if we refuse to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to unsheath the judicial sword that has increasingly emboldened other branches of government to denigrate, if not defy, orders of our courts. In Tolentino,⁸I endorsed the view of former Senator Salonga that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar, the lessons or our own history should provide us the light and not the experience of foreigners.

II

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

An enrolled bill is one which has been duly introduced, finally enacted by both Houses, signed by the proper officers of each House and approved by the President. ⁹ It is a declaration by the two Houses, through their presiding officers, to the President that a bill, thus attested has received in due the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him.

The enrolled bill originated in England where there is no written Constitution controlling the legislative branch of the government, and the acts of Parliament, being regarded in their nature as judicial as emanating from the highest tribunal in the land are placed on the same footing and regarded with the same veneration as the judgment of the courts which cannot be collaterally attacked.¹⁰ In England, the conclusiveness of the bill was premised on the rationale that an act of parliament thus made is the exercise the highest authority that this kingdom acknowledges upon earth. And it cannot be altered, amended, dispensed with, suspended or repealed, but in the same forms and by the same authority of parliament; for it is a maxim in law that requires the same strength to dissolve as to create an obligation.¹¹chanroblesvirtuallawlibrary

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

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

x x x

The signing by the Speaker of the House of Representatives, and, by the President of the Senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two Houses, through their presiding officers, to the President, that a bill, thus attested, has received, in due form, the sanction of the legislative branch of the government, and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him. And when a bill, thus attested, receives his approval, and is deposited in the public archives, its authentication as a bill that has passed Congress should be deemed complete and unimpeachable. As the President has no authority to approve a bill not passed by Congress, an enrolled Act in the custody of the Secretary of State, and having the official attestations of the Speaker of the House of Representatives, of the President of the Senate and of the President of the United States, carries, on its face, a solemn assurance by the legislative and executive departments of the government, charged, respectively, with the duty of enacting and executing the laws, that it was passed by Congress. The respect due to coequal and independent departments requires the judicial department to act upon the assurance, to accept, as having passed Congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the Act, so authenticated, is in conformity with the Constitution.

The principle of separation of powers is thus the principal prop of the enrolled bill doctrine. The doctrine is also justified as a rule of convenience. Supposedly, it avoids difficult questions of evidence.¹⁶ It is also believed that it will prevent the filing of too many cases which will cast a cloud of uncertainty on laws passed by the legislature. As explained in Ex Pacte Wren¹⁷ if the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, difficulty, and painful uncertainty appalling in its contemplation, and multiplying a hundredfold the alleged uncertainty of the law. The conclusiveness of the enrolled bill is also justified on the ground that journals and other extrinsic evidence are conducive to mistake, if not fraud.

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

x x x

Even in the land of its source, the so-called conclusive presumption of validity originally attributed to that doctrine has long been revisited and qualified, if not altogether rejected. On the competency of judicial inquiry, it has been held that (u)nder the enrolled bill rule by which an enrolled bill is sole expository of its contents and conclusive evidence of its existence and valid enactment, it is nevertheless competent for courts to inquire as to what prerequisites are fixed by the Constitution of which journals of respective houses of Legislature are required to furnish the evidence.

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

(1) While the presumption is that the enrolled bill, as signed by the legislative offices and filed with the secretary of state, is the bill as it passed, yet this presumption is not conclusive, and when it is shown from the legislative journals that a bill though engrossed and enrolled, and signed by the legislative officers contains provisions that have not passed both houses, such provisions will be held spurious and not a part of the law. As was said by Mr. Justice Cockrell in the case of Wade v. Atlantic Lumber Co., 51 Fla. 628, text 633, 41 So. 72, 73:

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

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

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

x x x

[1] Section 46 of the Kentucky Constitution sets out certain procedures that the legislature must follow before a bill can be considered for final passage. x x x.

x x x

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

x x x

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

x x x

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

The rule is not uninanimous in the several states, however and it has not been without critics. From an examination of cases and treaties, we can summarize the criticism as follows: (1) Artificial presumptions, especially conclusive ones, are not favored. (2) Such a rule frequently (as in the present case) produces results which do not accord with facts or constitutional provisions. (3) The rule is conducive to fraud, forgery, corruption and other wrongdoings. (4) Modern automatic and electronic record-keeping devices now used by legislatures remove one of the original reasons for the rule. (5) The rule disregards the primary obligation of the courts to seek the truth and to provide a remedy for a wrong committed by any branch of government. In light of these considerations we are convinced that the time has come to re-examine the enrolled bill doctrine.

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

The force of the rule depends upon the nature of the question to be decided and the extent of the disturbance of rights and practices which a change in the interpretation of the law or the course of judicial opinions may create. Cogent considerations are whether there is clear error and urgent reasons for neither justice not wisdon requires a court to go from one doubtful rule to another, and whether or not the evils of the principle that has been followed will be more injurious than can possibly result from a change.

Certainly, when a theory supporting a rule of law is not grounded on facts, or upon sound logic, or is unjust, or has been discredited by actual experience, it should be discarded, and with it the rule it supports.

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

It is also apparent that the convenience rule is not appropriate in todays modern and developing judicial philosophy. The fact that the number and complexity of lawsuit may increase is not persuasive if one is mindful that the overriding purpose of our judicial system is to discover the truth and see that justice is done. The existence of difficulties and complexities should not deter this pursuit and we reject any doctrine or presumption that so provides.

Lastly, we address the premise that the equality of the various branches of government requires that we shut our eyes to constitutional failing and other errors of our copartners in government. We simply do not agree. Section 26 of the Kentucky Constitution provides that any law contrary to the constitution is void. The proper exercise of judicial authority requires us to recognize any law which is unconstitutional and to declare it void. Without elaborating the point, we believe that under section 228 of the Kentucky Constitution it is our obligation to support the Constitution of the commonwealth. We are sworn to see that violations of the constitution by any person, corporation, state agency or branch or government are brought to light and corrected. To countenance an artificial rule of law that silences our voices when confronted with violations of our constitution is not acceptable to this court.

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

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

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

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

x x x

Hence, urea formaldehyde is clearly a finished product which is patently distinct and different from urea and formaldehyde, as separate articles used in the manufacture of the synthetic resin known as urea formaldehyde. Petitioner contends, however, that the bill approved in Congress contained the copulative conjunction and between the term urea and formaldehyde and that the members of Congress intended to exempt urea and formaldehyde separately as essential elements in the manufacture of the synthetic resin glue called urea formaldehyde, not the latte as a finished product, citing in support of this view the statements made on the floor of the Senate, during the consideration of the bill before said House, by members thereof. But said individual statements do not necessarily reflect the view of the Senate. Much less do they indicate the intent of the House of Representatives (see Song Kiat Chocolate Factory v. Central Bank, 54 Off Gaz. 615; Mayor Motors Inc. v. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. v. Games and Amusement Board, L-12727 [February 19, 1960]). Furthermore, it is well settled that enrolled bill which used the term urea formaldehyde instead of urea and formaldehyde conclusive upon the court as regards to the tenor of the measure passed by Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L-18684, Sept. 14, 1961). If there has been any mistake in the printing of the bill before it was certified by the officers of Congress and approved by the Executive on which we cannot speculate without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system the remedy is by amendment or curative legislation, not by judicial decree.

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

x x x. We cannot go behind the enrolled Act to discover what really happened. The respect due to the other branches of the Government demands that we act upon the faith and credit of what the officers of the said branches attest to as the official acts of their respective departments. Otherwise we would be cast in the uneviable and unwanted role of a sleuth trying to determine what actually did happen in the labyrinth of law-making, with consequent impairment of the integrity of the legislative process. The investigation which the petitioner would like this Court to make can be better done in Congress. After all, House cleaning the immediate and imperative need for which seems to be suggested by the petitioner can best be effected by the occupants thereof. Expressed elsewise, this is a matter worthy of the attention not of an Oliver Wendell Holmes but of a Sherlock Holmes.

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

By what we have essayed above we are not of course to be understood as holding that in all cases the journals must yield to the enrolled bill. To be sure there are certain matters which the Constitution expressly requires must be entered on the journal of each house. To what extent the validity of a legislative act may be affected by a failure to have such matters entered on the journal, is a question which we do not now decide. All we hold is that with respect to matters not expressly required to be entered on the journal, the enrolled bill prevails in the event of any discrepancy.

In the 1974 case of Astorga v. Villegas,²³we further diluted the enrolled bill doctrine when we refused to apply it after the Senate President declared his signature on the bill was invalid. We ruled:

x x x

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

As far as Congress itself is concerned, there is nothing sacrosant in the certification made by the presiding officers. It is merely a mode of authentication. The law-making process in Congress ends when the bill is approved by both Houses, and the certification does not add to the validity of the bill or cure any defect already present upon its passage. In other words it is the approval by Congress and not the signatures of the presiding officers that is essential. Thus the (1935) Constitution says that [e]very bill passed by the Congress shall, before it becomes law, be presented to the President. In Brown v. Morris, supra, the Supreme Court of Missouri, interpreting a similar provision in the State Constitution, said that the same makes it clear that the indispensable step is the final passage and it follows that if a bill, otherwise fully enacted as a law, is not attested by the presiding officer, the proof that it has passed both houses will satisfy the constitutional requirement.

Petitioner agrees that the attestation in the bill is not mandatory but argues that the disclaimer thereof by the Senate President, granting it to have been validly made, would only mean that there was no attestation at all, but would not affect the validity of the statute. Hence, it is pointed out, Republic Act No. 4065 would remain valid and binding. This argument begs the issued. It would limit the courts inquiry to the presence or absence of the attestation and to the effect of its absence upon the validity of the statute. The inquiry, however, goes farther. Absent such attestation as a result of the disclaimer, and consequently there being no enrolled bill to speak of, what evidence is there to determine whether or not the bill had been duly enacted. In such a case the entries in the journal should be consulted.

The journal of the proceedings of each House of Congress is no ordinary record the Constitution requires it. While it is true that the journal is not authenticated and subject to the risk of misprinting and the errors, the point is irrelevant in this case. This Court is merely asked to inquire whether the text of House Bill No. 9266 signed by the Chief Executive wa the same test passed by both Houses of Congress. Under the specific facts and circumstance of this case, this Court can do this and resort to the Senate journal for the purpose. The journal disclosed that substantial and lengthy amendments were introduced on the floor and approved by the Senate but were not incorporated in the printed text sent to the President and signed by him. This Court is not asked to incorporated such amendments into the alleged law, which admittedly is a risky undertaking, but to declare that the bill was not duly enacted and therefore did not become a law. This We do, as indeed both the President of the Senate and the Chief Executive did, when they withdrew their signatures therein. In the face of the manifest error committed and subsequently rectified by the President of the Senate and by the Chief Executive, for this Court to perpetuate that error by disregarding such rectification and holding that the erroneous bill has become a law would be to sacrifice truth to fiction and bring about mischievous consequences not intended by the law-making body.

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

While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function described thus:

A conference committee may deal generally with the subject matter or it may be limited to resolving the precise differences between two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond it mandate. These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p. 81).

It is matter of record that the conference Committee Report on the bill in question was returned to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having duly passed by both House of Congress. It was then presented to and approved by the President Corazon C. Aquino on April 3, 1992.

Under the doctrine of separation of powers, the Court may not require beyond the certification of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez laid down the rule that the enrolled bill is conclusive upon the Judiciary (except in matters that have to be entered in the journals are themselves also binding on the Supreme Court, as we held in the old (but stills valid) case of U.S. v. Pons, where we explained the reason thus:

To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would be to violate both the letter and spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions of the Legislature.

Applying these principles, we shall decline to look into the petitioners charges that the amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with the Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy.

Finally in 1994 came the case of Tolentino v. Secretary of Finance, et al. and its companion cases.²⁵ Involved in the case was the constitutionality of R.A. No. 7716, otherwise known as the Expanded Value Added Tax Law. The majority²⁶ partly relied on the enrolled bill doctrine in dismissing challenges to the constitutionality of R.A. No. 7716. It held:

x x x

Fourth. Whatever doubts there may be as to the formal validity of Republic Act No. 7716 must be resolved in its favor. Our cases manifest firm adherence to the rule that an enrolled copy of a bill is conclusive not only of its provisions but also of its due enactment. Not even claims that a proposed constitutional amendment was invalid because the requisite votes for its approval had not been obtained or that certain provision of a statute had been smuggled in the printing of the bill have moved or persuaded us to look behind the proceedings of a coequal branch of the government. There is no reason now to depart from this rule.

No claim is here made that the enrolled bill rule is absolute. In fact in one case we went behind and enrolled bill and consulted the Journal to determine whether certain provision of a statute had been approved by the Senate in view of the fact the President of the Senate himself, who had signed the enrolled bill, admitted a mistake and withdrew his signature, so that in effect there was no longer an enrolled bill to consider.

But where allegations that the constitutional procedures for the passage of bills have not been observed have more basis that another allegation that the Conference Committee surreptitiously inserted provisions into a bill which it had prepared, we should decline the invitation to go behind the enrolled copy of the bill. To disregard the enrolled bill rule in such cases would be to disregard the respect due to the other two departments of our government.

These case show that we have not blindly accepted the conclusiveness of the enrolled bill. Even in Tolentino, Mr. Justice Mendoza was cautious enough to hold that no claim is here made that the enrolled bill is absolute. I respectfully submit that it is now time for the Court to make a definitive pronouncement that we no longer give our unqualified support to the enrolled bill doctrine. There are compelling reasons for this suggested change in stance. For one, the enrolled bill is appropriate only in England where it originated because in England there is no written Constitution and the Parliament is supreme. For another, many of the courts in the United States have broken away from the rigidity and unrealism for the enrolled bill in light of contemporary developments in lawmaking.²⁷ And more important, our uncritical adherence to the enrolled bill is inconsistent with our Constitution, laws and rules. In Mabanag,²⁸ we relied on section 313 of the Old Code of Civil Procedure as amended by Act no. 2210 as a principal reason in embracing the enrolled bill. This section, however has long been repealed by our Rules of Court. A half glance at our Rules will show that its section on conclusive presumption does not carry the conclusive presumption we give to an enrolled bill. But this is not all. The conclusiveness of an enrolled bill which all too often results in the suppression of truth cannot be justified under the 1987 Constitution. The Preamble of our Constitution demands that we live not only under a rule of law but also a regime of truth. Our Constitution also adopted a national policy²⁹ requiring full public disclosure of all state transactions involving public interest. Any rule which will defeat this policy on transparency ought to be disfavored. And to implement these policies, this Court was given the power to pry open and to strike down any act of any branch or instrumentality of government if it amounts to grave abuse of discretion amounting to lack or excess of jurisdiction. It is time to bury the enrolled bill for its fiction of conclusiveness shuts off truth in many litigations. We cannot dispense justice based on fiction for the search for justice is the search for truth. I submit that giving an enrolled bill a mere prima facie presumption of correctness will facilitate our task of dispensing justice based on truth.

III

In sum, I respectfully submit that the Court has jurisdiction over the petition at bar and the issues posed by petitioner are justiciable. Nonetheless, I do not find any grave abuse of discretion committed by the public respondents to justify granting said petition. As the ponencia points out, the petition merely involves the complaints that petitioner was prevented from raising the question of quorum. The petition does not concern violation of any rule mandated by the Constitution. Nor does it involve the right of a non-member of the House which requires constitutional protection. The rules on how to question the existence of a quorum are procedural in character. They are malleable by nature for they were drafted to help the House enact laws. As well stated, these rules are servants, not masters of the House. Their observance or non-observance is a matter of judgment call on the part of our legislators and it is not the business of the Court to reverse this judgment when untainted by grave abuse of discretion amounting to lack or excess of jurisdiction.