November 6, 2011
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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 we 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.


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:


“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
Vicente Gustilo
Constancio Padilla
Alejo Santos
Luis M. Taruc
Amado M. Yuson
Jesus B. Lava
Alejandro Simpauco
May 25, 1946
May 25, 1946
May 22, 1946
May 23, 1946
May 25, 1946
May 25, 1946
May 25, 1946
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: For the respondents:
Secretary of Justice
First Asst. Solicitor General



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.


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 Senators Jose O. Vera, Ramon Diokno, and Jose E. Romero, because, according to them, “they are not duly qualified and sworn in members of the Senate.”

This allegation appears to be belied by the first seven paragraphs of the stipulation of facts submitted by both parties.

No amount of sophism, of mental gymnastics or logo-daedaly may change the meanings and effects of the words placed by respondents themselves in said seven paragraphs. No amount of argument may delude anyone into believing that Senators Vera, Diokno, and Romero are not senators notwithstanding their having been proclaimed as elected senators, their having taken part in the election of the President of the Senate, their having taken their oaths of office, and their receiving salaries as senators.

Such a paradoxical proposition could have been driven into acceptance in the undeveloped brains of the pithecanthropus or gigantopithecus of five hundred millennia ago, but it would be unpardonably insulting o the human mind of the twentieth century.

Our conclusion is that Senators Vera, Diokno, and Romero should be counted as members of the Senate, without taking into consideration whatever legal effects the Pendatun resolution may have produced, a question upon which we have already elaborated in our opinion in Vera vs. Avelino (77 Phil., 192). Suspended or not suspended, they are 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.


The next question raised by respondents is their denial of petitioners’ allegations to the effect that the present House of Representatives is composed of 98 members and their own allegation to the effect that at present “only 90 members have qualified, have been fully sworn in, and have taken their seats as such.”

Again respondents’ allegations are belied by paragraphs eight to seventeen of the stipulation of facts.

The disagreement between the parties is as to whether or not Representatives Cando, Gustilo, Padilla, Santos, Taruc, Yuson, Lava and Simpauco, mentioned in paragraph 13 of the stipulation of facts, are members of the House of Representatives.

The facts stipulated by the parties proved conclusively that said eight persons are actual members of the House of Representatives. We may even add that the conclusiveness about said eight representatives is 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 deprived of the exercise of some of their official functions and privileges by the unipersonal, groundless, dictatorial act of the Speaker.

That illegal deprivation, whose counterpart can only be found in countries where the insolence of totalitarian rulers have replaced all constitutional 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 representatives duly elected by the people of their constitutional functions, privileges, and prerogatives. To allow the existence of such an arbitrary power and to permit its exercise unchecked is to make of democracy a mockery.

The exercise of such an arbitrary power constitutes a want on onslaught against the sovereignty itself of the people, an onslaught which may cause the people sooner or later to take justice in their own hands. No system of representative government may subsist if those elected by the people may so easily be silenced or obliterated from the exercise of their constitutional functions.

From the stipulation of facts, there should not be any question that at the last national election, 98 representatives were elected and at the time the resolution Exhibit B was adopted on September 18, 1946, 96 of them were actual members of the House, as two (Representatives Zulueta and Ramos) has resigned.

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 representatives, three-fourths of them should certainly be more than the 68 who voted for the resolution. The necessary consequence is that, since not three-fourths of the senators and representatives voting separately have voted in favor of the resolution as required by Article XV of the Constitution, there can be no question that the resolution has not been validly adopted.

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 the actual membership of the Senate and House of Representatives, notwithstanding the fact that they are among the first important ones squarely raised by the pleadings of both parties. If they had taken them 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 respect to the actual membership of the House of Representatives.

Upon our conclusions as to the membership of the Senate and House of Representatives, it appears evident that the remedy sought for in the petition should be granted.


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 in the written arguments they have retreated to the theory of conclusiveness of the certification of authenticity made by the presiding officers and secretaries of both House of Congress as their last redoubt.

The resolution in question begins 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, . . ..”

Just because the adoption of the resolution, with the above statement, appears to be certified over the signatures of the President of the Senate and the House of Representatives and the Secretaries of both Houses, 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, what, as we have shown, appears to be a brazen official falsehood.

Our reason revolts against such an unethical proposition.

An intimation or suggestion that we, in the sacred temple of justice, throwing overboard all scruples, in the administration of justice, could accept as true what we know is not and then perform our official functions upon that voluntary self-delusion, is too shocking and absurd to be entertained even for a moment. Anyone who keeps the minimum sense of justice will not fail to feel aghast at the perversion or miscarriage of justice which necessarily will result from the suggestion.

But the theory is advanced as a basis to attack the jurisdiction of this Court to inquire behind the false certification made by the presiding officers and the secretaries of the two Houses of Congress.

Respondents rely on the theory of, in the words of the majority opinion, “the conclusiveness on the courts of an enrolled bill or resolution.”

To avoid repeating the arguments advanced by the parties, we have made part of this opinion, as Appendices A, B, and C,1 the memoranda presented by both petitioners and respondents, where their attorneys appear to have amply and ably discussed the question. The perusal of 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.


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, be taken 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?”


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.


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.


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.


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.


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.


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 akin to the emperor 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.


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 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 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 maelstrom 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.

To convict an impeached officer the fundamental law requires the concurrence of three-fourths of all the members of the Senate. From now on, that three-fourth rule may be dispensed with or circumvented by not counting three actual Senators, as has been done in the resolution in question, and thereby oust the President of the Philippines if he happens not to be in the good graces of a senatorial majority.

Without entering into the merits of the proposed constitutional amendment, to submit which to the people high-handed means have been resorted to, there can be no question that it is of vital importance to 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.


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:

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 inexpungable 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 ethnology 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 fulfillment of the promises of the future.

Since the last decade of the nineteenth century, physical science had progressed by leaps and bounds. Polonium and radium were discovered by Madam Curie, Rontgen discovered the X-ray, and Rutherford the alpha, beta and gamma particles. Atom ceased to be the smallest unit of matter to become an under-microscopic planetarian system of neutrons, protons, and electrons.

Ion exchangers are utilized to make of electrons veritable lamps of Aladdin. Plants are grown in plain water, without any soil, but only with 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.


1 Omitted.


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