G.R. No. 168056 ' ABAKADA GURO PARTY LIST, ET AL. VS.

EXECUTIVE
SECRETARY EDUARDO ERMITA, ET AL.
G.R. No. 168207 ' AQUILINO PIMENTEL, JR., ET AL. VS. EXECUTIVE SECRETARY
EDUARDO ERMITA, ET AL.
G.R. No. 168461 ' ASSOCIATION OF PILIPINAS SHELL DEALERS, INC., ET AL.
VS. CESAR V. PURISIMA, ET AL.
G.R. No. 168463 ' FRANCIS JOSEPH G. ESCUDERO, ET AL. VS. CESAR V.
PURISIMA, ET AL.
Promulgated:
September 1, 2005
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CONCURRING AND
DISSENTING OPINION
PUNO, J.:
The main opinion of Madam Justice Martinez exhaustively discusses the numerous
constitutional and legal issues raised by the petitioners. Be that as it may, I wish to raise
the following points, viz:
First. Petitioners assail sections 4 to 6 of Republic Act No. 9337 as violative of the
principle of non-delegation of legislative power. These sections authorize the President,
upon recommendation of the Secretary of Finance, to raise the value-added tax (VAT)
rate to 12% effective January 1, 2006, upon satisfaction of the following conditions:
viz:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds
one and one-half percent (1 '%).
The power of judicial review under Article VIII, section 5(2) of the 1987 Constitution is
limited to the review of 'actual cases and controversies. [1] As rightly stressed by
retired Justice Vicente V. Mendoza, this requirement gives the judiciary 'the opportunity,
denied to the legislature, of seeing the actual operation of the statute as it is applied to
actual facts and thus enables it to reach sounder judgment and 'enhances public
acceptance of its role in our system of government. [2] It also assures that the judiciary
does not intrude on areas committed to the other branches of government and is
confined to its role as defined by the Constitution. [3] Apposite thereto is the doctrine of
ripeness whose basic rationale is to prevent the courts, through premature
adjudication, from entangling themselves in abstract disagreements. [4] Central to the
doctrine is the determination of 'whether the case involves uncertain or contingent
future events that may not occur as anticipated, or indeed may not occur at all. [5] The
ripeness requirement must be satisfied for each challenged legal provision and parts
of a statute so that those which are 'not immediately involved are not thereby thrown
open for a judicial determination of constitutionality. [6]
It is manifest that the constitutional challenge to sections 4 to 6 of R.A. No. 9337 cannot
hurdle the requirement of ripeness. These sections give the President the power to
raise the VAT rate to 12% on January 1, 2006 upon satisfaction of certain fact-
based conditions. We are not endowed with the infallible gift of prophesy to know
whether these conditions are certain to happen. The power to adjust the tax rate given
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to the President is futuristic and may or may not be exercised. The Court is therefore
beseeched to render a conjectural judgment based on hypothetical facts. Such a
supplication has to be rejected.
Second. With due respect, I submit that the most important constitutional issue posed
by the petitions at bar relates to the parameters of power of a Bicameral Conference
Committee. Most of the issues in the petitions at bar arose because the Bicameral
Conference Committee concerned exercised powers that went beyond reconciling the
differences between Senate Bill No. 1950 and House Bill Nos. 3705 and 3555. In
Tolentino v. Secretary of Finance, [7] I ventured the view that a Bicameral
Conference Committee has limited powers and cannot be allowed to act as if it were a
'third house of Congress. I further warned that unless its roving powers are reigned
in, a Bicameral Conference Committee can wreck the lawmaking process which is a
cornerstone of the democratic, republican regime established in our Constitution. The
passage of time fortifies my faith that there ought to be no legal u-turn on this
preeminent principle. I wish, therefore, to reiterate my reasons for this unbending view,
viz: [8]
Section 209, Rule XII of the Rules of the Senate provides:
In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference
committee of both Houses which shall meet within ten days after their composition.
Each Conference Committee Report shall contain a detailed and sufficiently explicit
statement of the changes in or amendments to the subject measure, and shall be
signed by the conferees. (Emphasis supplied)
The counterpart rule of the House of Representatives is cast in near identical language.
Section 85 of the Rules of the House of Representatives pertinently provides:
In the event that the House does not agree with the Senate on the amendments to any
bill or joint resolution, the differences may be settled by a conference committee of both
chambers.
x x x. Each report shall contain a detailed, sufficiently explicit statement of the changes
in or amendments to the subject measure. (Emphasis supplied)
The Jefferson's Manual has been adopted as a supplement to our parliamentary rules
and practice. Section 456 of Jefferson's Manual similarly confines the powers of a
conference committee, viz:
The managers of a conference must confine themselves to the differences committed to
them ' and may not include subjects not within the disagreements, even though
germane to a question in issue.
This rule of antiquity has been honed and honored in practice by the Congress of the
United States. Thus, it is chronicled by Floyd Biddick, Parliamentarian Emeritus of the
United States Senate, viz:
Committees of conference are appointed for the sole purpose of compromising and
adjusting the differing and conflicting opinions of the two Houses and the committees of
conference alone can grant compromises and modify propositions of either Houses
within the limits of the disagreement. Conferees are limited to the consideration of
differences between the two Houses.
Congress shall not insert in their report matters not committed to them by either House,
nor shall they strike from the bill matters agreed to by both Houses . No matter on which
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there is nothing in either the Senate or House passed versions of a bill may be included
in the conference report and actions to the contrary would subject the report to a point
of order. (Emphasis ours)
In fine, there is neither a sound nor a syllable in the Rules of the Senate and the House
of Representatives to support the thesis of the respondents that a bicameral conference
committee is clothed with an ex post veto power.
But the thesis that a Bicameral Conference Committee can wield ex post veto power
does not only contravene the rules of both the Senate and the House. It wages war
against our settled ideals of representative democracy. For the inevitable, catastrophic
effect of the thesis is to install a Bicameral Conference Committee as the Third
Chamber of our Congress, similarly vested with the power to make laws but with the
dissimilarity that its laws are not the subject of a free and full discussion of both Houses
of Congress. With such a vagrant power, a Bicameral Conference Committee acting as
a Third Chamber will be a constitutional monstrosity.
It needs no omniscience to perceive that our Constitution did not provide for a Congress
composed of three chambers. On the contrary, section 1, Article VI of the Constitution
provides in clear and certain language: 'The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of
Representatives Note that in vesting legislative power exclusively to the Senate and the
House, the Constitution used the word 'shall. Its command for a Congress of two
houses is mandatory. It is not mandatory sometimes.
In vesting legislative power to the Senate, the Constitution means the Senate composed
of twenty-four Senators xxx elected at large by the qualified voters of the Philippines
Similarly, when the Constitution vested the legislative power to the House, it means the
House composed of not more than two hundred and fifty members xxx who shall be
elected from legislative districts xxx and those who xxx shall be elected through a party-
list system of registered national, regional, and sectoral parties or organizations. The
Constitution thus, did not vest on a Bicameral Conference Committee with an ad hoc
membership the power to legislate for it exclusively vested legislative power to the
Senate and the House as co-equal bodies. To be sure, the Constitution does not
mention the Bicameral Conference Committees of Congress. No constitutional status is
accorded to them. They are not even statutory creations. They owe their existence from
the internal rules of the two Houses of Congress. Yet, respondents peddle the
disconcerting idea that they should be recognized as a Third Chamber of Congress and
with ex post veto power at that.
The thesis that a Bicameral Conference Committee can exercise law making power with
ex post veto power is freighted with mischief. Law making is a power that can be used
for good or for ill, hence, our Constitution carefully laid out a plan and a procedure for its
exercise. Firstly, it vouchsafed that the power to make laws should be exercised by no
other body except the Senate and the House. It ought to be indubitable that what is
contemplated is the Senate acting as a full Senate and the House acting as a full
House. It is only when the Senate and the House act as whole bodies that they truly
represent the people. And it is only when they represent the people that they can
legitimately pass laws. Laws that are not enacted by the people's rightful
representatives subvert the people's sovereignty. Bicameral Conference Committees,
with their ad hoc character and limited membership, cannot pass laws for they do not
3
represent the people. The Constitution does not allow the tyranny of the majority. Yet,
the respondents will impose the worst kind of tyranny ' the tyranny of the minority over
the majority. Secondly, the Constitution delineated in deft strokes the steps to be
followed in making laws. The overriding purpose of these procedural rules is to assure
that only bills that successfully survive the searching scrutiny of the proper committees
of Congress and the full and unfettered deliberations of both Houses can become laws.
For this reason, a bill has to undergo three (3) mandatory separate readings in each
House. In the case at bench, the additions and deletions made by the Bicameral
Conference Committee did not enjoy the enlightened studies of appropriate committees.
It is meet to note that the complexities of modern day legislations have made our
committee system a significant part of the legislative process. Thomas Reed called the
committee system as 'the eye, the ear, the hand, and very often the brain of the house.
President Woodrow Wilson of the United States once referred to the government of the
United States as 'a government by the Chairmen of the Standing Committees of
Congress Neither did these additions and deletions of the Bicameral Conference
Committee pass through the coils of collective deliberation of the members of the two
Houses acting separately. Due to this shortcircuiting of the constitutional procedure of
making laws, confusion shrouds the enactment of R.A. No. 7716. Who inserted the
additions and deletions remains a mystery. Why they were inserted is a riddle. To use a
Churchillian phrase, lawmaking should not be a riddle wrapped in an enigma. It cannot
be, for Article II, section 28 of the Constitution mandates the State to adopt and
implement a 'policy of full public disclosure of all its transactions involving public
interest. The Constitution could not have contemplated a Congress of invisible and
unaccountable John and Mary Does. A law whose rationale is a riddle and whose
authorship is obscure cannot bind the people.
All these notwithstanding, respondents resort to the legal cosmetology that these
additions and deletions should govern the people as laws because the Bicameral
Conference Committee Report was anyway submitted to and approved by the Senate
and the House of Representatives. The submission may have some merit with respect
to provisions agreed upon by the Committee in the process of reconciling conflicts
between S.B. No. 1630 and H.B. No. 11197. In these instances, the conflicting
provisions had been previously screened by the proper committees, deliberated upon
by both Houses and approved by them. It is, however, a different matter with respect to
additions and deletions which were entirely new and which were made not to reconcile
inconsistencies between S.B. No. 1630 and H.B. No. 11197. The members of the
Bicameral Conference Committee did not have any authority to add new provisions or
delete provisions already approved by both Houses as it was not necessary to
discharge their limited task of reconciling differences in bills. At that late stage of law
making, the Conference Committee cannot add/delete provisions which can become
laws without undergoing the study and deliberation of both chambers given to bills on
1st, 2nd, and 3rd readings. Even the Senate and the House cannot enact a law which will
not undergo these mandatory three (3) readings required by the Constitution. If the
Senate and the House cannot enact such a law, neither can the lesser Bicameral
Conference Committee.
Moreover, the so-called choice given to the members of both Houses to either approve
or disapprove the said additions and deletions is more of an optical illusion. These
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additions and deletions are not submitted separately for approval. They are tucked to
the entire bill. The vote is on the bill as a package, i.e., together with the insertions and
deletions. And the vote is either 'aye or 'nay, without any further debate and
deliberation. Quite often, legislators vote 'yes' because they approve of the bill as a
whole although they may object to its amendments by the Conference Committee. This
lack of real choice is well observed by Robert Luce:
Their power lies chiefly in the fact that reports of conference committees must be
accepted without amendment or else rejected in toto. The impulse is to get done with
the matter and so the motion to accept has undue advantage, for some members are
sure to prefer swallowing unpalatable provisions rather than prolong controversy. This is
the more likely if the report comes in the rush of business toward the end of a session,
when to seek further conference might result in the loss of the measure altogether. At
any time in the session there is some risk of such a result following the rejection of a
conference report, for it may not be possible to secure a second conference, or delay
may give opposition to the main proposal chance to develop more strength.
In a similar vein, Prof. Jack Davies commented that conference reports are returned to
assembly and Senate on a take-it or leave-it-basis, and the bodies are generally placed
in the position that to leave-it is a practical impossibility. Thus, he concludes that
'conference committee action is the most undemocratic procedure in the legislative
process.
The respondents also contend that the additions and deletions made by the Bicameral
Conference Committee were in accord with legislative customs and usages. The
argument does not persuade for it misappreciates the value of customs and usages in
the hierarchy of sources of legislative rules of procedure. To be sure, every legislative
assembly has the inherent right to promulgate its own internal rules. In our jurisdiction,
Article VI, section 16(3) of the Constitution provides that 'Each House may determine
the rules of its proceedings x x x. But it is hornbook law that the sources of Rules of
Procedure are many and hierarchical in character. Mason laid them down as follows:
xxx
1. Rules of Procedure are derived from several sources. The principal sources are as
follows:
a. Constitutional rules.
b. Statutory rules or charter provisions.
c. Adopted rules.
d. Judicial decisions.
e. Adopted parliamentary authority.
f. Parliamentary law.
g. Customs and usages.
2. The rules from the different sources take precedence in the order listed above
except that judicial decisions, since they are interpretations of rules from one of the
other sources, take the same precedence as the source interpreted. Thus, for example,
an interpretation of a constitutional provision takes precedence over a statute.
3. Whenever there is conflict between rules from these sources the rule from the source
listed earlier prevails over the rule from the source listed later. Thus, where the
Constitution requires three readings of bills, this provision controls over any provision of
statute, adopted rules, adopted manual, or of parliamentary law, and a rule of
5
parliamentary law controls over a local usage but must give way to any rule from a
higher source of authority. (Emphasis ours)
As discussed above, the unauthorized additions and deletions made by the Bicameral
Conference Committee violated the procedure fixed by the Constitution in the making of
laws. It is reasonless for respondents therefore to justify these insertions as sanctioned
by customs and usages.
Finally, respondents seek sanctuary in the conclusiveness of an enrolled bill to bar any
judicial inquiry on whether Congress observed our constitutional procedure in the
passage of R.A. No. 7716. The enrolled bill theory is a historical relic that should not
continuously rule us from the fossilized past. It should be immediately emphasized that
the enrolled bill theory originated in England where there is no written constitution and
where Parliament is supreme. In this jurisdiction, we have a written constitution and the
legislature is a body of limited powers. Likewise, it must be pointed out that starting from
the decade of the 40s, even American courts have veered away from the rigidity and
unrealism of the conclusiveness of an enrolled bill. Prof. Sutherland observed:
xxx
Where the failure of constitutional compliance in the enactment of statutes is not
discoverable from the face of the act itself but may be demonstrated by recourse to the
legislative journals, debates, committee reports or papers of the governor, courts have
used several conflicting theories with which to dispose of the issue. They have held: (1)
that the enrolled bill is conclusive and like the sheriff's return cannot be attacked; (2)
that the enrolled bill is prima facie correct and only in case the legislative journal shows
affirmative contradiction of the constitutional requirement will the bill be held invalid; (3)
that although the enrolled bill is prima facie correct, evidence from the journals, or other
extrinsic sources is admissible to strike the bill down; (4) that the legislative journal is
conclusive and the enrolled bills is valid only if it accords with the recital in the journal
and the constitutional procedure.
Various jurisdictions have adopted these alternative approaches in view of strong
dissent and dissatisfaction against the philosophical underpinnings of the
conclusiveness of an enrolled bill. Prof. Sutherland further observed:
x x x. Numerous reasons have been given for this rule. Traditionally, an enrolled bill was
'a record and as such was not subject to attack at common law. Likewise, the rule of
conclusiveness was similar to the common law rule of the inviolability of the sheriff's
return. Indeed, they had the same origin, that is, the sheriff was an officer of the king
and likewise the parliamentary act was a regal act and no official might dispute the
king's word. Transposed to our democratic system of government, courts held that as
the legislature was an official branch of government the court must indulge every
presumption that the legislative act was valid. The doctrine of separation of powers was
advanced as a strong reason why the court should treat the acts of a co-ordinate branch
of government with the same respect as it treats the action of its own officers; indeed, it
was thought that it was entitled to even greater respect, else the court might be in the
position of reviewing the work of a supposedly equal branch of government. When
these arguments failed, as they frequently did, the doctrine of convenience was
advanced, that is, that it was not only an undue burden upon the legislature to preserve
its records to meet the attack of persons not affected by the procedure of enactment,
6
but also that it unnecessarily complicated litigation and confused the trial of substantive
issues.
Although many of these arguments are persuasive and are indeed the basis for the rule
in many states today, they are not invulnerable to attack. The rule most relied on ' the
sheriff's return or sworn official rule ' did not in civil litigation deprive the injured party of
an action, for always he could sue the sheriff upon his official bond. Likewise, although
collateral attack was not permitted, direct attack permitted raising the issue of fraud, and
at a later date attack in equity was also available; and that the evidence of the sheriff
was not of unusual weight was demonstrated by the fact that in an action against the
sheriff no presumption of its authenticity prevailed.
The argument that the enrolled bill is a record and therefore unimpeachable is likewise
misleading, for the correction of records is a matter of established judicial procedure.
Apparently, the justification is either the historical one that the king's word could not be
questioned or the separation of powers principle that one branch of the government
must treat as valid the acts of another.
Persuasive as these arguments are, the tendency today is to avoid reaching results by
artificial presumptions and thus it would seem desirable to insist that the enrolled bill
stand or fall on the basis of the relevant evidence which may be submitted for or against
it. (Emphasis ours)
Thus, as far back as the 1940s, Prof. Sutherland confirmed that '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.
Third. I respectfully submit that it is only by strictly following the contours of powers of
a Bicameral Conference Committee, as delineated by the rules of the House and the
Senate, that we can prevent said Committee from acting as a 'third chamber of
Congress. Under the clear rules of both the Senate and House, its power can go no
further than settling differences in their bills or joint resolutions. Sections 88 and 89,
Rule XIV of the Rules of the House of Representatives provide as follows:
Sec. 88. Conference Committee. ' In the event that the House does not agree with the
Senate on the amendment to any bill or joint resolution, the differences may be settled
by the conference committees of both chambers.
In resolving the differences with the Senate, the House panel shall, as much as
possible, adhere to and support the House Bill. If the differences with the Senate are so
substantial that they materially impair the House Bill, the panel shall report such fact to
the House for the latter's appropriate action.
Sec. 89. Conference Committee Reports. - . . . Each report shall contain a detailed,
sufficiently explicit statement of the changes in or amendments to the subject measure.
The Chairman of the House panel may be interpellated on the Conference Committee
Report prior to the voting thereon. The House shall vote on the Conference Committee
Report in the same manner and procedure as it votes a bill on third and final reading.
Section 35, Rule XII of the Rules of the Senate states:
Sec. 35. In the event that the Senate does not agree with the House of Representatives
on the provision of any bill or joint resolution, the differences shall be settled by a
conference committee of both Houses which shall meet within ten (10) days after their
7
composition. The President shall designate the members of the Senate Panel in the
conference committee with the approval of the Senate.
Each Conference Committee Report shall contain a detailed and sufficiently explicit
statement of the changes in, or amendments to the subject measure, and shall be
signed by a majority of the members of each House panel, voting separately.
The House rule brightlines the following: (1) the power of the Conference Committee is
limited . . . it is only to settle differences with the Senate; (2) if the differences are
substantial, the Committee must report to the House for the latter's appropriate action;
and (3) the Committee report has to be voted upon in the same manner and procedure
as a bill on third and final reading. Similarly, the Senate rule underscores in crimson
that (1) the power of the Committee is limited - - - to settle differences with the House;
(2) it can make changes or amendments only in the discharge of this limited power to
settle differences with the House; and (3) the changes or amendments are merely
recommendatory for they still have to be approved by the Senate.
Under both rules , it is obvious that a Bicameral Conference Committee is a mere
agent of the House or the Senate with limited powers. The House contingent in the
Committee cannot, on its own, settle differences which are substantial in
character. If it is confronted with substantial differences, it has to go back to the
chamber that created it 'for the latter's appropriate action. In other words, it must take
the proper instructions from the chambers that created it. It cannot exercise its
unbridled discretion. Where there is no difference between the bills, it cannot make
any change. Where the difference is substantial, it has to return to the chamber of its
origin and ask for appropriate instructions. It ought to be indubitable that it cannot
create a new law, i.e., that which has never been discussed in either chamber of
Congress. Its parameters of power are not porous, for they are hedged by the clear
limitation that its only power is to settle differences in bills and joint resolutions of the
two chambers of Congress. '
Fourth. Prescinding from these premises, I respectfully submit that the following acts of
the Bicameral Conference Committee constitute grave abuse of discretion amounting to
lack or excess of jurisdiction and should be struck down as unconstitutional nullities, viz:
a. Its deletion of the pro poor 'no pass on
provision which is common in both Senate Bill No. 1950 and House Bill No. 3705.
Sec. 1 of House Bill No. 3705 [9] provides:
Section 106 of the National Internal Revenue Code of 1997, as amended, is hereby
further amended to read as follows:
SEC. 106. Value-added Tax on Sale of Goods or Properties. '
xxx
Provided, further, that notwithstanding the provision of the second paragraph of Section
105 of this Code, the Value-added Tax herein levied on the sale of petroleum products
under Subparagraph (1) hereof shall be paid and absorbed by the sellers of petroleum
products who shall be prohibited from passing on the cost of such tax payments,
either directly or indirectly[,] to any consumer in whatever form or manner, it
being the express intent of this act that the Value-added Tax shall be borne and
absorbed exclusively by the sellers of petroleum products x x x.
Sec. 3 of the same House bill provides:
8
Section 108 of the National Internal Revenue Code of 1997, as amended, is hereby
further amended to read as follows:
Sec. 108. Value-added Tax on Sale of Goods or Properties. '
Provided, further, that notwithstanding the provision of the second paragraph of Section
105 of this Code, the Value-added Tax imposed under this paragraph shall be paid and
absorbed by the subject generation companies who shall be prohibited from
passing on the cost of such tax payments, either directly or indirectly[,] to any
consumer in whatever form or manner, it being the express intent of this act that the
Value-added Tax shall be borne and absorbed exclusively [by] the power-generating
companies.
In contrast and comparison, Sec. 5 of Senate Bill No. 1950 provides:
Value-added Tax on sale of Services and Use or Lease of Properties. '
x x x Provided, that the VAT on sales of electricity by generation companies, and
services of transmission companies and distribution companies, as well as those of
franchise grantees of electrical utilities shall not apply to residential end-users:
Provided, that the Value-added Tax herein levied shall be absorbed and paid by the
generation, transmission and distribution companies concerned. The said companies
shall not pass on such tax payments to NAPOCOR or ultimately to the
consumers, including but not limited to residential end users, either as costs or in any
other form whatsoever, directly or indirectly. x x x.
Even the faintest eye contact with the above provisions will reveal that: (a) both the
House bill and the Senate bill prohibited the passing on to consumers of the VAT on
sales of electricity and (b) the House bill prohibited the passing on to consumers of the
VAT on sales of petroleum products while the Senate bill is silent on the prohibition.
In the guise of reconciling disagreeing provisions of the House and the Senate bills on
the matter, the Bicameral Conference Committee deleted the 'no pass on provision
on both the sales of electricity and petroleum products. This action by the
Committee is not warranted by the rules of either the Senate or the House. As
aforediscussed, the only power of a Bicameral Conference Committee is to reconcile
disagreeing provisions in the bills or joint resolutions of the two houses of Congress.
The House and the Senate bills both prohibited the passing on to consumers of the
VAT on sales of electricity. 'The Bicameral Conference Committee cannot override
this unequivocal decision of the Senate and the House. Nor is it clear that there is a
conflict between the House and Senate versions on the 'no pass on provisions' of the
VAT on sales of petroleum products. The House version contained a 'no pass on
provision but the Senate had none. Elementary logic will tell us that while there may
be a difference in the two versions, it does not necessarily mean that there is a
disagreement or conflict between the Senate and the House. The silence of the
Senate on the issue cannot be interpreted as an outright opposition to the House
decision prohibiting the passing on of the VAT to the consumers on sales of petroleum
products. Silence can even be conformity, albeit implicit in nature. But granting for the
nonce that there is conflict between the two versions, the conflict cannot escape the
characterization as a substantial difference. The seismic consequence of the deletion
of the 'no pass on provision of the VAT on sales of petroleum products on the ability of
our consumers, especially on the roofless and the shirtless of our society, to survive
the onslaught of spiraling prices ought to be beyond quibble. The rules require that the
9
Bicameral Conference Committee should not, on its own, act on this substantial conflict.
It has to seek guidance from the chamber that created it. It must receive proper
instructions from its principal, for it is the law of nature that no spring can rise higher
than its source. The records of both the Senate and the House do not reveal that this
step was taken by the members of the Bicameral Conference Committee. They
bypassed their principal and ran riot with the exercise of powers that the rules never
bestowed on them.
b. Even more constitutionally obnoxious are the added restrictions on local
government's use of incremental revenue from the VAT in Section 21 of R.A. No.
9337 which were not present in the Senate or House Bills. Section 21 of R.A. No.
9337 provides:
Fifty percent of the local government unit's share from VAT shall be allocated and used
exclusively for the following purposes:
1. Fifteen percent (15%) for public elementary and secondary education to
finance the construction of buildings, purchases of school furniture and in-service
teacher trainings;
2. Ten percent (10%) for health insurance premiums of enrolled indigents as a
counterpart contribution of the local government to sustain the universal coverage of the
national health insurance program;
3. Fifteen percent (15%) for environmental conservation to fully implement a
comprehensive national reforestation program; and
4. Ten percent (10%) for agricultural modernization to finance the construction
of farm-to-market roads and irrigation facilities.
Such allocations shall be segregated as separate trust funds by the national treasury
and shall be over and above the annual appropriation for similar purposes.

These amendments did not harmonize conflicting provisions between the

constituent bills of R.A. No. 9337 but are entirely new and extraneous concepts
which fall beyond the median thereof. They transgress the limits of the Bicameral
Conference Committee's authority and must be struck down.
I cannot therefore subscribe to the thesis of the majority that 'the changes introduced by
the Bicameral Conference Committee on disagreeing provisions were meant only to
reconcile and harmonize the disagreeing provisions for it did not inject any idea or
intent that is wholly foreign to the subject embraced by the original provisions.
Fifth. The majority further defends the constitutionality of the above provisions by
holding that 'all the changes or modifications were germane to subjects of the
provisions referred to it for reconciliation.
With due respect, it is high time to re-examine the test of germaneness proffered in
Tolentino.
The test of germaneness is overly broad and is the fountainhead of mischief for it
allows the Bicameral Conference Committee to change provisions in the bills of the
House and the Senate when they are not even in disagreement. Worse still, it enables
the Committee to introduce amendments which are entirely new and have not
previously passed through the coils of scrutiny of the members of both houses. The
Constitution did not establish a Bicameral Conference Committee that can act as a
'third house of Congress with super veto power over bills passed by the Senate and
10
the House. We cannot concede that super veto power without wrecking the delicate
architecture of legislative power so carefully laid down in our Constitution. The clear
intent of our fundamental law is to install a lawmaking structure composed only of two
houses whose members would thoroughly debate proposed legislations in
representation of the will of their respective constituents. The institution of this
lawmaking structure is unmistakable from the following provisions: (1) requiring that
legislative power shall be vested in a bicameral legislature; [10] (2) providing for quorum
requirements; [11] (3) requiring that appropriation, revenue or tariff bills, bills authorizing
increase of public debt, bills of local application, and private bills originate exclusively in
the House of Representatives; [12] (4) requiring that bills embrace one subject
expressed in the title thereof; [13] and (5) mandating that bills undergo three readings
on separate days in each House prior to passage into law and prohibiting amendments
on the last reading thereof. [14] A Bicameral Conference Committee with untrammeled
powers will destroy this lawmaking structure. At the very least, it will diminish the free
and open debate of proposed legislations and facilitate the smuggling of what
purports to be laws.
On this point, Mr. Robert Luce's disconcerting observations are apropos:
Their power lies chiefly in the fact that reports of conference committees must be
accepted without amendment or else rejected in toto. The impulse is to get done with
the matters and so the motion to accept has undue advantage, for some members
are sure to prefer swallowing unpalatable provisions rather than prolong
controversy. This is more likely if the report comes in the rush of business toward the
end of the session, when to seek further conference might result in the loss of the
measure altogether. At any time in the session there is some risk of such a result
following the rejection of a conference report, for it may not be possible to secure a
second conference, or delay may give opposition to the main proposal chance to
develop more strength.
xxx xxx xxx
Entangled in a network of rule and custom, the Representative who resents and would
resist this theft of his rights, finds himself helpless. Rarely can be vote, rarely can he
voice his mind, in the matter of any fraction of the bill. Usually he cannot even record
himself as protesting against some one feature while accepting the measure as whole.
Worst of all, he cannot by argument or suggested change, try to improve what the other
branch has done.
This means more than the subversion of individual rights. It means to a degree the
abandonment of whatever advantage the bicameral system may have. By so
much it in effect transfers the lawmaking power to small group of members who
work out in private a decision that almost always prevails. What is worse, these
men are not chosen in a way to ensure the wisest choice. It has become the practice to
name as conferees the ranking members of the committee, so that the accident of
seniority determines. Exceptions are made, but in general it is not a question of who are
most competent to serve. Chance governs, sometimes giving way to favor, rarely to
merit.
xxx xxx xxx
Speaking broadly, the system of legislating by conference committee is unscientific and
therefore defective. Usually it forfeits the benefit of scrutiny and judgment by all
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the wisdom available. Uncontrolled, it is inferior to that process by which every
amendment is secured independent discussion and vote. . . . [15] It cannot be
overemphasized that in a republican form of government, laws can only be enacted by
all the duly elected representatives of the people. It cuts against conventional
wisdom in democracy to lodge this power in the hands of a few or in the claws of
a committee. It is for these reasons that the argument that we should overlook the
excesses of the Bicameral Conference Committee because its report is anyway
approved by both houses' is a futile attempt to square the circle for an unconstitutional
act is void and cannot be redeemed by any subsequent ratification. Neither can we shut
our eyes to the unconstitutional acts of the Bicameral Conference Committee by holding
that the Court cannot interpose its checking powers over mere violations of the internal
rules of Congress. In Arroyo, et al. v. de Venecia, et al., [16] we ruled that when the
violations affect private rights or impair the Constitution, the Court has all the power,
nay, the duty to strike them down. In conclusion, I wish to stress that this is not the
first time nor will it be last that arguments will be foisted for the Court to merely wink at
assaults on the Constitution on the ground of some national interest, sometimes clear
and at other times inchoate. To be sure, it cannot be gainsaid that the country is in the
vortex of a financial crisis. The broadsheets scream the disconcerting news that our
debt payments for the year 2006 will exceed Pph1 billion daily for interest alone.
Experts underscore some factors that will further drive up the debt service expenses
such as the devaluation of the peso, credit downgrades and a spike in interest rates.
[17] But no doomsday scenario will ever justify the thrashing of the Constitution. The
Constitution is meant to be our rule both in good times as in bad times. 'It is the Court's
uncompromising obligation to defend the Constitution at all times lest it be condemned
as an irrelevant relic.

WHEREFORE, I concur with the majority but dissent on the following points:

a) I vote to withhold judgment on the constitutionality of the 'standby authority in

Sections 4 to 6 of Republic Act No. 9337 as this issue is not ripe for adjudication.;

b) I vote to declare unconstitutional the deletion by the Bicameral Conference

Committee of the pro poor 'no pass on provision on electricity to residential consumers
as it contravened the unequivocal intent of both Houses of Congress; and

c) I vote to declare Section 21 of Republic Act No. 9337 as unconstitutional as it

contains extraneous provisions not found in its constituent bills.

REYNATO S. PUNO

Associate Justice

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