Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, in his capacity as Chairman of the Commission on Higher Education (CHED) and as former Director General of the National Economic and Development Authority (NEDA) v. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS & INVESTIGATIONS (BLUE RIBBON), SENATE COMMITTEE ON TRADE & COMMERCE, and SENATE COMMITTEE ON NATIONAL DEFENSE & SECURITY
DISSENTING OPINION
PUNO, C.J.:
That the Senate is a continuing body is a constitutional notion often stated, but not much scrutinized.1 Upon this notion rests the continued life of Senate rules of procedure; hence, the need to moor it on the proper doctrinal anchor.
The issues for resolution in respondent Senate Committees’ Motion for Reconsideration are as follows:
"I. Contrary to this Honorable Court’s Decision, there is no doubt that the assailed Orders were issued by respondent Committees pursuant to the exercise of their legislative power, and not merely their oversight functions.
II. Contrary to this Honorable Court’s Decision, there can be no presumption that the information withheld in the instant case is privileged.
III. Contrary to this Honorable Court’s Decision, there is no factual or legal basis to hold that the communications elicited by the subject three (3) questions are covered by executive privilege considering that:
A. There is no showing that the matters for which executive privilege is claimed constitute state secrets.
B. Even if the tests adopted by this Honorable Court in the Decision is (sic) applied, there is no showing that the elements of presidential communications privilege are present.
C. On the contrary, there is adequate showing of a compelling need to justify the disclosure of the information sought.
D. To uphold the claim of executive privilege in the instant case would seriously impair the respondents’ performance of their primary function to enact laws.
E. Finally, the constitutional right of the people to information, and the constitutional policies on public accountability and transparency outweigh the claim of executive privilege.
IV. Contrary to this Honorable Court’s Decision, respondents did not commit grave abuse of discretion in issuing the assailed contempt Order, considering that:
A. There is no legitimate claim of executive privilege in the instant case.
B. Respondents did not violate the supposed requirements laid down in Senate v. Ermita.
C. Respondents duly issued the contempt Order in accordance with their internal rules.
D. Respondents did not violate the requirement under Article VI, Section 21 of the Constitution requiring that its rules of procedure be duly published, and were denied due process when the Court considered the OSG’s intervention on this issue without giving respondents the opportunity to comment.
E. Respondents’ issuance of the contempt Order is not arbitrary or precipitate."2
The Motion for Reconsideration presents a long list of issues, but I shall focus on the issue of violation of the requirement under Article VI, Section 21 of the 1987 Constitution that the rules of procedure governing inquiries in aid of legislation be "duly published." As to the remaining issues, I reiterate my position in my Dissenting Opinion to the March 25, 2008 Decision.
The textual hook for resolving the publication issue is Article VI, Section 21 of the 1987 Constitution, which provides, viz:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (emphasis supplied)
Publication as a due process requirement
As the 1987 Constitution does not provide the manner of "duly" publishing the rules of procedure under the afore-quoted Article VI, Section 21, the Records of the 1986 Constitutional Commission is a good place to start in interpreting this provision. The Records, however, are also bereft of deliberations to shed light on the publication requirement. Nonetheless, I submit that the landmark case Tañada v. Tuvera3 is a lighthouse that can guide us in navigating through the publication question.
In Tañada, the petitioners invoked their right to information on matters of public concern under Article IV, Section 6 of the 1973 Constitution,4 and the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. They sought to compel the respondent public officials to publish or cause to be published in the Official Gazette various presidential decrees, letters of instruction, general orders, proclamations, executive orders, letters of implementation and administrative orders.
In ruling in favor of petitioners, the Court interpreted Article 2 of the Civil Code of the Philippines, which states that "(l)aws shall take effect after fifteen days following completion of their publication in the Official Gazette, unless it is otherwise provided x x x." It held that the phrase "unless it is otherwise provided" refers not to the requirement of publication in the Official Gazette, which is indispensable for the law or regulation to take effect, but to the period of time from publication after which the law shall take effect. The Court allowed the fifteen-day period to be extended or shortened, but not to the extent of altogether omitting publication.
The Court reasoned that an omission of publication would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. It noted that it is not unlikely that persons not aware of the laws would be prejudiced as a result, and not because of a failure to comply with them, but simply because they did not know of their existence. Thus, the Court concluded that "…all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature… Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation."5
While the Court acknowledged that newspapers of general circulation, instead of the Official Gazette, could better perform the function of communicating laws to the public -- as such periodicals are more easily available, have a wider readership, and come out regularly -- it was constrained to hold that publication must be made in the Official Gazette because that was the requirement in Article 2 of the Civil Code.
Subsequently, President Corazon C. Aquino issued Executive Order No. 200, allowing publication either in the Official Gazette or in a newspaper of general circulation in the Philippines.6
In the case at bar, the Senate of the Tenth Congress adopted the subject "Rules of Procedure Governing Inquiries in Aid of Legislation" ("Rules of Procedure Governing Inquiries") on August 21, 1995 pursuant to Article VI, Section 21 of the 1987 Constitution.7 Section 24 of the Rules provides that the Rules "shall take effect seven (7) days after publication in two (2) newspapers of general circulation." The Senate thus caused it to be published in two newspapers of general circulation, The Philippine Star and Malaya, on August 24, 1995. The published Rules of Procedure Governing Inquiries indicated that it was adopted in the Tenth Congress on August 21, 1995.
The Senate of the Thirteenth Congress caused the re-publication of the Rules of Procedure Governing Inquiries on December 1, 2006 in two newspapers of general circulation, The Philippine Star and Philippine Daily Inquirer. The published rules appeared in the same manner it did in the August 24, 1995 publication, i.e., under the heading "Tenth Congress" and with August 21, 1995 as the date of adoption.8 The publications also stated that the Rules of Procedure Governing Inquiries had been previously published in the August 24, 1995 issues of The Philippine Star and Malaya, and that "(n)o amendments have been made in the Rules since its adoption."
Evidently, the Senate of the Thirteenth Congress did not adopt anew the Rules of Procedure Governing Inquiries, as the publications in December 2006 indicated that it was the Rules of Procedure adopted in the Tenth Congress on August 21, 1995 and published on August 24, 1995. There was no amendment made on it since its adoption on August 21, 1995; thus, re-publication was apparently done merely for purposes of public information and not to give effect to a new or amended Rules of Procedure Governing Inquiries. As respondent Senate Committees correctly contend, "not having been amended, modified or repealed since 1995, the Rules of Procedure Governing Inquiries in Aid of Legislation remain in full force and effect."9
I submit that the publication of the Rules of Procedure Governing Inquiries on August 24, 1995 has satisfied the due process requirement to inform the public of a rule that would govern them and affect their rights.
The Resolution of the majority, however, ruled that the respondent Senate Committees failed to meet the publication requirement under Article VI, Section 21 of the 1987 Constitution, as it is not sufficient that the Rules of Procedure Governing Inquiries be published once; instead, it should be published by the Senate of every Congress.
Should the Rules of Procedure Governing Inquiries
be published by the Senate of every Congress?
In disputing the majority Resolution’s conclusion and supporting my position that one-time publication suffices, let me first lay down the premise of the Resolution and the Comments of the petitioner and the Office of the Solicitor General (OSG). They all cite the disquisition on this matter by Justice Antonio T. Carpio in his Dissenting and Concurring Opinion to the March 25, 2008 Decision in this case, viz:
"In Arnault v. Nazareno, [footnote omitted] decided under the 1935 Constitution, this Court ruled that ‘the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation.’ To act as a legislative body, the Senate must have a quorum, which is a majority of its membership. [Section 10(2), Article VI, 1935 Constitution; Section 16(2), Article VI, 1987 Constitution. Both the 1935 and 1987 Constitutions provide that ‘(A) majority of each House shall constitute a quorum to do business.’] Since the Senate under the 1935 Constitution always had two-thirds of its membership filled up except for vacancies arising from death or resignation, the Senate always maintained a quorum to act as a legislative body. Thus, the Senate under the 1935 Constitution continued to act as a legislative body even after the expiry of the term of one-third of its members. This is the rationale in holding that the Senate under the 1935 Constitution was a continuing legislative body. [See also Attorney General Ex. Rel. Werts v. Rogers, et al., 56 N.J.L. 480, 652 (1844)]. The Supreme Court of New Jersey declared: ‘(T)he vitality of the body depends upon the existence of a quorum capable of doing business. That quorum constitutes a senate. Its action is the expression of the will of the senate, and no authority can be found which states any other conclusion. All difficulty and confusion in constitutional construction is avoided by applying the rule x x x that the continuity of the body depends upon the fact that in the senate a majority constitutes a quorum, and, as there is always more than a quorum of qualified senators holding seats in that body, its organic existence is necessarily continuous. x x x The senate of the United States remains a continuous body because two-thirds of its members are always, in contemplation of the constitution, in existence.’]
"The present Senate under the 1987 Constitution is no longer a continuing legislative body. The present Senate has twenty-four members, twelve of whom are elected every three years for a term of six years each. Thus, the term of twelve Senators expires every three years, leaving less than a majority of Senators to continue into the next Congress. The 1987 Constitution, like the 1935 Constitution, requires a majority of Senators to ‘constitute a quorum to do business.’ [Section 16(2), Article VI, Constitution] Applying the same reasoning in Arnault v. Nazareno, the Senate under the 1987 Constitution is not a continuing body because less than majority of the Senators continue into the next Congress. The consequence is that the Rules of Procedure must be republished by the Senate after every expiry of the term of twelve Senators."10 (emphasis supplied)
On the other hand, respondent Senate Committees point out that there is nothing in the wording of Article VI, Section 21 of the 1987 Constitution that requires the Senate of every Congress to publish the Rules of Procedure Governing Inquiries. More than the absence of a textual basis for the requirement, respondent Senate Committees contend that the Senate is a continuing body since the terms of its members expire at different times, and as such, it is not required to formally adopt and publish its Rules of Procedure Governing Inquiries for every Congress, unless it is repealed or amended.11
It is my considered view that there is merit in the contention of respondent Senate Committees that the Rules of Procedure Governing Inquiries need not be published by the Senate of every Congress, as the Senate is a continuing body. The continuity of these rules from one Congress to the next is both an incident and an indicium of the continuing nature of the Senate.
The Senate is a continuing body
Excerpts from the deliberations of the 1986 Constitutional Commission provide us a brief history of the Senate of the Philippines and its intended nature as a continuing legislative body, viz:
"MR. TINGSON: Madam President and colleagues of this honorable Assembly, I would like to speak briefly on the need for a bicameral legislature elected on a national basis. I would like to thank the Chair and my colleagues for giving me this chance to express my personal view on the type of legislature that we may adopt as we undertake the task of drafting a new Constitution.
"Perhaps an approach based on historical perspective is relevant at this point in time, when our decision to adopt a more receptive form of legislature will not only determine our present but also direct our future as a nation. In the Malolos Constitution of 1899, the legislative power was exercised by an assembly of representatives of the nation. Upon the cession of the Philippines to the United States under the Treaty of Paris, we had a military government which was later replaced by a civil government in 1900. During this time, the executive and the legislative functions were exercised by a Commission. With the passage of the Philippine Bill of 1902, a bicameral legislature was created, transforming the Philippine Commission into the Upper Chamber and constituting the Philippine Assembly as the Lower House.
"In 1916, pursuant to the Jones Law, legislative power was vested in an all-Filipino bicameral legislature with the Senate as the Upper Chamber and the House of Representatives as the Lower Chamber. The Senators then were elected from the twelve senatorial districts. In the 1935 Constitution, we again adopted a unicameral legislative body known as the National Assembly. The Convention then rejected the proposal for a bicameral legislature with an Upper House called the Senate. The failure of the bicameralist position was due to the division on the question of representation. The Committee on the Legislative proposed that Senators be elected throughout the Philippines on the basis of proportional representation. Others, however, advocated that each province shall be entitled to one Senator, as the practice in the United States. Still others preferred the system of senatorial district under the Jones Law of 1916.
"During the time of President Manuel L. Quezon, an amendment providing for a bicameral legislature was adopted. Senators were elected nationwide. I may say that the reason President Quezon advocated for a bicameral form of legislature is not primarily that he was wary of a strong unicameral body that can dislodge him anytime by impeachment, but that he believed that the Senate affords a sufficient critical and methodical review of legislation. It assumes the role of moderating force in the formulation of legislative policies. It serves as a fiscalizer on the actions of the Lower House, which in usual practice is prone to passing excessive appropriations acts and other forms of legislations that may prove detrimental to the interest of the nation. The Senate, Madam President, according to President Quezon, will serve as a balance for harmony between the executive and the legislative departments and provide a training ground for future leaders. It may be said that it also serves as a vanguard against the activities of politicians and lobbying pressure groups and, likewise, safeguards any possible encroachment upon the constitutional liberties of the people.
"As to representation, the Upper House provides national representation which the Lower House cannot attain. In so doing, a bicameral form fosters national unity and consciousness, rather than a representative form merely based on the respective districts of the members of legislature. The scope of legislative responsibility is, therefore, unified with the presence of the Senate. One of the most important features, of course, is that the Senate insures stability of governmental policies as the Senate is a continuing body.12
xxx xxx xxx
"MR. RODRIGO: … I would like to state that in the United States Federal Congress, the term of the members of the Lower House is only two years. We have been used to a term of four years here but I think three years is long enough. But they will be allowed to run for reelection any number of times. In this way, we remedy the too frequent elections every two years. We will have elections every three years under this scheme and we will have a continuing Senate. Every election, 12 of the 24 Senators will be elected, so that 12 Senators will remain in the Senate. We will have a staggered membership in the Senate. In other words, we will have a continuing Senate.13
xxx xxx xxx
"THE PRESIDING OFFICER (Mr. Rodrigo): Commissioner Davide is recognized.
"MR. DAVIDE: This is just a paragraph of that section that will follow what had earlier been approved. It reads: ‘OF THE SENATORS ELECTED IN THE ELECTION IN 1992, THE FIRST TWELVE OBTAINING THE HIGHEST NUMBER OF VOTES SHALL SERVE FOR SIX YEARS AND THE REMAINING TWELVE FOR THREE YEARS.’
"This is to start the staggering of the Senate to conform with the idea of a continuing Senate.
"THE PRESIDING OFFICER (Mr. Rodrigo): What does the committee say?
"MR. SUAREZ: The committee accepts the Davide proposal, Mr. Presiding Officer.
"THE PRESIDING OFFICER (Mr. Rodrigo): Is there any objection? (Silence) The Chair hears none; the proposed amendment is approved.
"MR. SUAREZ: May we submit that to a vote?
VOTING
"THE PRESIDING OFFICER (Mr. Rodrigo): As many as are in favor of the Davide amendment, please raise their hand. (Several Members raised their hand.)
"As many as are abstaining, please raise their hand. (No Member raised his hand.)
"The results show 25 votes in favor and none against; the proposed amendment is approved."14 (emphasis supplied)
The above deliberations show that the nature of the Senate as a continuing body hinged on the staggering of terms of the Senators, such that the term of one-half or twelve of the Senators ("remaining Senators") would subsist and continue into the succeeding Congress, while the term of the other half or twelve Senators ("outgoing Senators") would expire in the present Congress. As pointed out by Commissioner Gregorio J. Tingson, this arrangement whereby half of the Senate’s membership continues into the next Congress is designed to help ensure "stability of governmental policies."
The structure of the Philippine Senate being evidently patterned after the U.S. Senate,15 it reflects the latter’s rationale for staggering senatorial terms and constituting the Senate as a continuing body.16 Much can be gleaned from The Federalist Papers in ascertaining the rationale of the Senate’s design. The Federalist Papers was written by three "Founding Fathers" of the United States, namely, James Madison, Alexander Hamilton and John Jay. Madison subsequently became President of the U.S., while John Jay became the first Chief Justice of the U.S. Supreme Court. The Federalist Papers is a collection of 85 essays that were written and first published in various New York newspapers in 1787-1788 to explain the U.S. Constitution and urge the people of New York to ratify it. As Madison and Hamilton were both members of the Federal Convention of 1787, The Federalist Papers is largely used as an authority to interpret the intent of the framers of the U.S. Constitution.17
James Madison urged that the Senate be so constituted as to have permanency and stability.18 With their staggered terms and longer tenure, Senators are expected to bring stability and wisdom to legislative measures.19 Indeed, the framers of the U.S. Constitution considered stability and consistency of law to be fundamental to liberty itself.
In The Federalist Nos. 62 and 63, the Senate was extensively discussed. Madison elaborated in The Federalist No. 62, the injurious effects of instability to a nation. Instability "forfeits the respect and confidence of other nations," and the latter would not want to "connect their fortunes" with that nation. He also explained that the domestic effects of mutability are calamitous. "It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow."
Another evil of instability, Madison adds, is the "unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens." An unstable government "damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements." Madison asks, "(w)hat prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy."
Madison then concludes that above all, the deplorable effect of instability "is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability."
In The Federalist No. 63 written by Madison or Hamilton, it was noted that the "objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation. The importance of the latter description to the collective and permanent welfare of every country, needs no explanation. And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years. Nor is it possible for the people to estimate the SHARE of influence which their annual assemblies may respectively have on events resulting from the mixed transactions of several years. It is sufficiently difficult to preserve a personal responsibility in the members of a NUMEROUS body, for such acts of the body as have an immediate, detached, and palpable operation on its constituents." Madison or Hamilton then suggests that "(t)he proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects."
Alexander Hamilton also stated in the debate during the New York ratification convention that "the main design of the Convention, in creating the Senate, was to prevent fluctuations and cabals."20 Madison agreed with Hamilton’s assessment, writing: "Nothing is more certain than that the tenure of the Senate was meant as an obstacle to the instability, which not only history, but the experience of our country, had shown to be the besetting infirmity of popular governments."21 "In order to form some balance, the departments of government were separated, and as a necessary check, the legislative body was composed of two branches. Steadiness and wisdom are better insured when there is a second branch, to balance and check the first. The stability of the laws will be greater when the popular branch, which might be influenced by local views, or the violence of a party, is checked by another, whose longer continuance in office will render them more experienced, more temperate, and more competent to decide rightly."22
John Jay’s explanation was along the same lines as the thoughts of Madison and Hamilton, that the Senate elections were staggered, so that "uniformity and order, as well as a constant succession of official information will be preserved."23
In the deliberations on the U.S. Constitution by the Federal Convention of 1787, one of the considerations stated for a proposed staggering of nine-year senatorial terms in three divisions was to give other countries "confidence in the stability or efficacy"24 of the American government, the lack of which has prevented Great Britain from entering into a commercial treaty with the U.S.25 "Permanency and safety to those who are to be governed"26 were also cited as goals for creating the Senate.
In McGrain v. Daugherty,27 the U.S. Supreme Court confirmed the view that the Senate is a "continuing body whose members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant at the end of each Congress, two-thirds always continuing into the next Congress, save as vacancies may occur through death or resignation."28 In that case, the investigation by a Senate committee was ordered during the Sixty-eighth Congress, which expired on March 4, 1925. The Senate, however, amended the resolution authorizing the investigation to allow the committee to sit at such times and places as it might deem advisable or necessary. In addressing the question of whether the investigation may be continued after the expiration of the Sixty-eighth Congress, the U.S. High Court, citing Mr. Hinds in his collection of precedents, held that the Senate as a continuing body, may give authority to its committees to continue through the recess following the expiration of a Congress. The Court ruled that a Senate committee established in the Sixty-eighth Congress could be "continued or revived" by motion after such expiration and, if continued or revived, would have all its original powers.29
The Philippine Supreme Court cited McGrain in Arnault v. Nazareno.30 The issue in Arnault, however, was the validity of the exercise of the contempt power of the Senate after the expiration of the first regular session (of the Second Congress) in which the Senate resolved that petitioner Jean Arnault be arraigned for contempt, and not after the termination of the Second Congress. Nonetheless, in upholding the continuing contempt power of the Senate, the Court held, viz:
"Like the Senate of the United States, the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation. Members of the House of Representatives are all elected for a term of four years; so that the term of every Congress is four years. The Second Congress of the Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The resolution of the Senate committing the Petitioner was adopted during the first session of the Second Congress, which began on the fourth Monday of January and ended on May 18, 1950.
"… We find no sound reason to limit the power of the legislative body to punish for contempt to the end of every session and not to the end of the last session terminating the existence of that body. The very reason for the exercise of the power to punish for contempt is to enable the legislative body to perform its constitutional function without impediment or obstruction. Legislative functions may be and in practice are performed during recess by duly constituted committees charged with the duty of performing investigations or conducting hearing relative to any proposed legislation. To deny to such committees the power of inquiry with process to enforce it would be to defeat the very purpose for which that power is recognized in the legislative body as an essential and appropriate auxiliary to its legislative function. It is but logical to say that the power of self-preservation is coexistent with the life to be preserved.
"But the resolution of commitment here in question was adopted by the Senate, which is a continuing body and which does not cease to exist upon the periodical dissolution of the Congress or of the House of Representatives. There is no limit as to time to the Senate’s power to punish for contempt in cases where that power may constitutionally be exerted as in the present case.
"Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The Senate has ordered an investigation of the Buenavista and Tambobong estates deal, which we have found it is within its competence to make. That investigation has not been completed because of the refusal of the petitioner as a witness to answer certain questions pertinent to the subject of the inquiry. The Senate has empowered the committee to continue the investigation during the recess. By refusing to answer the questions, the witness has obstructed the performance by the Senate of its legislative function, and the Senate has the power to remove the obstruction by compelling the witness to answer the questions thru restraint of his liberty until he shall have answered them. That power subsists as long as the Senate, which is a continuing body, persists in performing the particular legislative function involved. To hold that it may punish the witness for contempt only during the session in which investigation was begun, would be to recognize the right of the Senate to perform its function but at the same time to deny to it an essential and appropriate means for its performance. Aside from this, if we should hold that the power to punish for contempt terminates upon the adjournment of the session, the Senate would have to resume the investigation at the next and succeeding sessions and repeat the contempt proceedings against the witness until the investigation is completed -- an absurd, unnecessary, and vexatious procedure, which should be avoided."31
The Resolution of the majority, the petitioner and the OSG make much of the fact, however, that two-thirds of the membership of the Senate continued into the next Congress under the 1935 Constitution when Arnault was decided, and only half of the Senate membership now continues into the next Congress under the 1987 Constitution. They contend that since both the 1935 and the 1987 Constitutions provide that a "majority of each House shall constitute a quorum to do business,"32 the Senate under the 1987 Constitution has lost its continuing nature, as it no longer has a continuing quorum to do business when half of its membership’s term expires at the end of every Congress.33 Even following their contention that the satisfaction of the quorum to do business is based on the number of "remaining Senators," a textual reading of the provisions on legislative functions under the 1935 Constitution would show that even the continuing two-thirds membership of the Senate (or sixteen Senators) cannot perform all the legislative functions of the Senate. A three-fourths (or eighteen Senators) vote is necessary to override the veto of the President with respect to "appropriation bills which appropriate a sum in excess of ten per centum of the total amount voted in the appropriation bill for the general expenses of the Government for the preceding year, or if it should refer to a bill authorizing an increase of the pubic debt."34
More importantly, the reasoning of the Resolution of the majority, the petitioner and the OSG -- that the continuing nature of the Senate depends on the presence of a quorum, counting the number of "remaining Senators" -- falls under its own weight when we take a hard look at the Constitutional provision on the term of Senators.
Article VI, Section 4 of the 1987 Constitution, provides that, "(t)he term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election." (emphasis supplied) Pursuant to this provision, the term of office of a Senator expires before noon on the thirtieth day of June, six years from commencement of his term. Thus, upon expiration of the term of the twelve "outgoing Senators" on June 30, the term of the twelve "new Senators" will commence.35 The Senators-elect take their oath of office upon commencement of their term and begin to exercise their functions;36 the collective oath-taking of the Senators upon the opening of Congress is normally but a tradition and a formality.37 In the Fourteenth Congress, for example, newly elected Senator Loren B. Legarda filed Senate Bill No. 225, entitled "An Act Providing for the Establishment of Barangay Drugstores, Otherwise Known as ‘Botica Sa Barangay’ and for other Purposes," on June 30, 2007, the day her term commenced and before the opening of the Fourteenth Congress on July 23, 2007. Likewise, on the same day, newly re-elected Senator Francis N. Pangilinan filed Senate Bill No. 138, entitled "An Act Providing for a Magna Carta for Students."
Contrary to the contention of the Resolution of the majority, petitioner and the OSG, at no point from one Congress to the next is there a lack of quorum based on the terms of office of the "remaining Senators" and "new Senators." Under the 1987 Constitution, on the opening of a Congress on the fourth Monday of July,38 the quorum is based on the number of both the "remaining Senators" and the "new Senators" whose terms have already commenced on June 30. A similar situation obtained under the 1935 Constitution, in which three sets of eight Senators had staggered six-year terms. Article VI, Section 3 of the 1935 Constitution provides: "The term of office of Senators shall be six years and shall begin on the thirtieth day of December next following their election."
Thus, the Senate under both the 193539 and the 198740 Constitutions counted the quorum based on the number of "remaining Senators" and "new Senators" upon opening of every Congress. This unbroken practice of the Senate of counting the quorum at the start of every new Congress based on both the "remaining Senators" and "new Senators," and not only on the two-thirds or one-half "remaining Senators," is not something to be lightly cast aside in ascertaining the nature of the Senate as a continuing body.41 In the U.S., the Senate of the 18th century42 and the present day upper chamber43 have also counted their quorum based on the number of both the "remaining Senators" and "new Senators" upon the opening of every Congress.
It is worth noting that in the June 25 and 26, 1787 debates of the Federal Convention of 1787 on the staggering of terms of office of Senate members -- whether the term under consideration was nine years or six years with triennial staggering -- the quorum requirement was not mentioned as a consideration to maintain continuity in the Senate.44 Conversely, neither was the staggering of terms considered when the quorum requirement was taken up by the Convention two months later on August 10, 1787.45 When the quorum requirement was being set by the Federal Convention, there were proposals to peg it at the majority or less than the majority of the members of the Senate; or to leave it to the legislature to set the quorum requirement, considering the secession of some States that would not send delegates to the Senate and the inconvenience of not reaching a quorum.46 There was also a proposal to fix the quorum at two-thirds of the members of the Senate.47 In setting the quorum requirement, the balance being struck was between the inconvenience of not being able to muster a quorum if it was set too high and the insufficiency in representation of the interests of the people if it was set too low.48 The continuity of the Senate, considering the staggered terms of its members, was apparently not part of the equation.
It may be argued that under the 1987 Constitution, some "outgoing Senators" might resign prior to the termination of their terms on June 30 to run for election in May,49 thus, possibly diminishing the number of Senators to only twelve or less than the quorum requirement. However, the argument also holds true under the 1935 Constitution. It could happen that four of the sixteen "remaining Senators" would resign or die, such that there would be only twelve Senators left, or less than the quorum requirement under the 1935 Constitution. (Even Arnault acknowledged this eventuality; hence, as afore-quoted, it ruled that "the Senate of the Philippines is a continuing body whose members are elected for a term of six years and so divided that the seats of only one-third become vacant every two years, two-thirds always continuing into the next Congress save as vacancies may occur thru death or resignation.") The point of the illustration is that the nature of the Senate as a continuing body under both the 1935 and the 1987 Constitutions cannot be made to depend on the actual presence of a quorum which, in turn, depends on the tenure of the Senators.
In sum, it is the staggering of the terms of the 24 Senators and allowing the terms of office of a portion of the Senate membership to continue into the succeeding Congress - whether two-thirds under the 1935 Constitution or one-half under the 1987 Constitution - that provides the stability indispensable to an effective government, and makes the Senate a continuing body as intended by the framers of both the 1935 (as amended) and the 1987 Constitutions.
Part of the stability provided by a continuing Senate is the existence of rules of proceedings adopted pursuant to the power granted by the U.S. Constitution,50 rules that continue to be in effect from one Congress to the next until such rules are repealed or amended, but with the process for repeal and amendment also being governed by the subsisting rules. U.S. Senator Francis Warren cautions that a Senate that is not continuing, but instead new in each Congress, opens all rules to debate as a new matter; the Senate will be totally and wholly without rules as it proceeds "at sea without rudder or compass regarding rules."51 Thus, in the U.S., the Senate rules of proceedings provide that "(t)he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."52 These rules, adopted on January 11, 1884 and made effective on January 21, 1884, continue to be in effect to this day53 alongside the continuing membership of the Senate.54
Patterned after the U.S. Constitution, the 1987 Constitution also provides under Article VI, Section 16(3) that "(e)ach House may determine the rules of its proceedings…" As in the U.S. Senate, the Senate Rules (of proceedings) adopted by the Philippine Senate have a continued effect from one Congress to the next as shown by the following provisions of the Philippine Senate Rules:
"Rule LII (Date of Taking Effect), Section 137: These Rules shall take effect on the date of their adoption and shall remain in force until they are amended or repealed."
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"Rule LI (Amendments to, Or revisions Of, The Rules), Section 136: At the start of each session in which the Senators elected in the preceding elections shall begin their term of office, the President may endorse the Rules to the appropriate committee for amendment or revision.
"The Rules may also be amended by means of a motion which should be presented at least one day before its consideration, and the vote of the majority of the Senators present in the session shall be required for its approval." (emphasis supplied)
It is obvious that the above rules do not provide for the expiration of the Senate Rules at the termination of every Congress. On the contrary, Rule LI provides that at the opening of every Congress, the Senate President may endorse the Senate Rules to the appropriate committee for amendment or revision, which connotes that the Senate Rules must be subsisting for them to be subject to amendment or revision. If the Senate were not a continuing body, the Senate Rules governing its proceedings would not be given continuing effect from one Congress to the next.
The earlier Senate Rules adopted in 1950 under the 1935 Constitution also evince the same intent of the Senate to make its rules continuing, in conformity with its continuous nature as a legislative body. Chapter LII (Amendments to or Revisions of the Rules), Section 121 of the 1950 Rules, provides, viz:
"Sec. 121. At the beginning of each session in which the Senators elected in the last or preceding elections shall begin their term of office, and as soon as the Committee on Rules shall have been organized, the President of the Senate shall endorse the Rules to said Committee for amendment or revision.
"An amendment to the Rules, may, however, be presented by means of a motion containing the proposed amendment.
"This should be presented at least one day before its consideration, and the vote of a majority of the Senators present in the session shall be required for its approval." (emphasis supplied)
While the present Senate Rules provide under Rule XLIV (Unfinished Business), Section 123 that "(a)ll pending matters and proceedings shall terminate upon the expiration of one (1) Congress," between the expiration of a Congress and the opening of the succeeding Congress, some functions of the Senate continue during such recess. Aside from the administrative functions performed by Senate employees for the continued operation of the Senate as an institution, legislative functions continue to be exercised. The offices of the "remaining Senators" continue their legislative work in preparation for the succeeding Congress. These continuing functions require continuing effectivity of the Senate Rules. An example of a provision of the Senate Rules applicable to these continuing activities is Rule XXII (Filing and Consideration of Bills and Resolutions), Section 61, which provides that "(a)ll bills and resolutions shall be filed with the Office of the Secretary whether the Senate is in session or not."
To illustrate, in the current Fourteenth Congress, Senate Bill No. 1 entitled, "An Act Exempting the Purchase of Medicine by Senior Citizens from the Coverage of the Value Added Tax, and Amending Section 109 (1) of the National Internal Revenue Code, as Amended" was filed by Senator Jinggoy E. Estrada on June 30, 2007 after the adjournment of the third or final regular session55 of the Thirteenth Congress and before the opening of the Fourteenth Congress.56 On the same date, Senator Rodolfo G. Biazon filed Senate Bill No. 32 entitled, "An Act Providing for the National Defense and Security of the Republic of the Philippines, and for Other Purposes." Both bills were taken up on first reading and referred to the proper Senate Committees in the Senate session on July 24, 2007, a day after the Fourteenth Congress opened on July 23, 2007, when the Senate was organized with the election of its officers, and President Gloria Macapagal-Arroyo delivered her State of the Nation Address.57
It should be noted that the termination of unfinished business upon expiration of one Congress is sanctioned by Rule XLIV, Section 123 of the Senate Rules. The Senate Rules, may, however, be amended under Rule LI, Section 36. It remains to be seen whether by amendment of the Senate Rules, the Senate would allow a Senate Committee conducting an investigation, for example, to continue its proceedings after the expiration of a Congress as in the afore-discussed case, McGrain v. Daugherty.
Prescinding from the continuing nature of the Senate and the continuing effectivity of the Senate Rules (of proceedings), it is my considered view that the Rules of Procedure Governing Inquiries adopted by the Senate of the Tenth Congress on August 21, 1995 should likewise be recognized to have continuing force and effect after being "duly published" in two newspapers of general circulation on August 24, 1995.
Deference to the legislative department
in interpreting its rule-making power
The power of each House of Congress to adopt its own rules of proceedings under Article VI, Section 1658 of the 1987 Constitution is so obvious that the 1986 Constitutional Commission hardly deliberated on the matter. Even the framers of the U.S. Constitution, from which our own provision on rules of proceedings was adopted, did not prescribe standards for the promulgation of internal procedural rules and spent no time debating this power of each House of Congress; they conferred essentially open-ended discretion on each chamber to regulate its own internal proceedings.59 In the 1787 Federal Convention, it was not a controversial principle that each chamber should have the ability to adopt rules binding on its members. "The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority."60
It cannot be gainsaid that rules of proceedings are a necessity in preserving order, decency and regularity in a dignified public body. These rules are weapons of the weaker party to defend themselves from irregularities and abuses "which the wantonness of power is but too often apt to suggest to large and successful majorities."61 Thomas Jefferson stated in the opening of his widely used, A Manual of Parliamentary Practice, viz:
"Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, ‘It was a maxim he had often heard when he was a young man, from old and experienced members, that nothing tended more to throw power into the hands of the administration and those who acted with the majority of the House of Commons, than in neglect of, or departure from, the rules of proceeding; that these forms, as instituted by our ancestors, operated as a check, and control, on the actions of the majority; and that they were, in many instances, a shelter and protection to the minority, against the attempts of power.’"62 (emphasis supplied)
Still and all, the rule-making power of the legislature is not absolute. The outer limit of a legislative rule is reached when it collides with a constitutional proscription. The case in which the U.S. Supreme Court made its most extensive analysis of the nature and limitations of the congressional rule-making power was United States v. Ballin,63 a late nineteenth-century case that involved the constitutional quorum requirement.64
The origin of Ballin was a quorum-busting technique used by both the Republicans and the Democrats in that era to halt business in the House of Representatives. Under the rules of the House at that time, the Speaker established the presence of a quorum by counting the voting members. In the 1888 elections, the Republicans won the majority for the first time in fourteen years. The new Speaker of the Fifty-first Congress, Thomas B. Reed of Maine, found himself in the position of having 166 Republican members, the exact number needed to meet the quorum requirement.65 Democrats could thus stop business in the House by merely refusing to vote and requiring the Republicans to establish a quorum with their members alone. On January 29, 1890, Democrats halted business on a contested election case by remaining silent to defeat the quorum requirement.66 Speaker Reed retaliated by announcing the names of members "present and refusing to vote," thereby establishing that a majority of the House was present and the House was thereby able to conduct business.67 Speaker Reed’s famous interpretation of the quorum rule became "Rule XV"68 in the Fifty-first Congress, the constitutionality of which became the central issue in Ballin.69
Ballin involved a tariff law passed by the House in 1890 under Speaker Reed’s new quorum-counting rule.70 The plaintiff was a New York merchant who had imported worsted wool fabrics subject to that law. The enactment passed the House by a vote of 138 to none, with the Speaker noting, in accordance with the new Rule XV, that 74 members were in the chamber but not voting, bringing the total number of lawmakers present to 212 -- a figure well above the 166 members needed to make a quorum.71 The merchant challenged the legality of the tariff, arguing that the law had not legitimately passed the House, because a quorum had not been present to do business.72
In ruling that the tariff law validly passed the House, the Ballin Court upheld the action of the Speaker, viz:
"The action taken was in direct compliance with this rule. [Rule 15 provides, viz: ‘... (3) On the demand of any member, or at the suggestion of the speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business.’ H. J. 230, Feb. 14, 1890.] The question, therefore, is as to the validity of this rule, and not what methods the speaker may of his own motion resort to for determining the presence of a quorum, nor what matters the speaker or clerk may of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
"The constitution provides that ‘a majority of each [house] shall constitute a quorum to do business.’ In other words, when a majority are present, the house is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the constitution requires is the presence of a majority, and when that majority are present, the power of the house arises.
"But how shall the presence of a majority be determined? The constitution has prescribed no method of making this determination, and it is therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the fact. It may prescribe answer to roll-call as the only method of determination; or require the passage of members between tellers, and their count, as the sole test; or the count of the speaker or the clerk, and an announcement from the desk of the names of those who are present. Any one of these methods, it must be conceded, is reasonably certain of ascertaining the fact; and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation of fundamental rights in any, it follows that the house may adopt either or all, or it may provide for a combination of any two of the methods. That was done by the rule in question, and all that that rule attempts to do is to prescribe a method for ascertaining the presence of a majority, and thus establishing the fact that the house is in a condition to transact business."73 (emphasis supplied)
In Defensor-Santiago v. Guingona, Jr.,74 which involved an interpretation of the rules of the Senate but not private rights, the Court emphasized the respect due a co-equal branch of government in the determination of its internal affairs, viz:
"On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work.
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"…Constitutional respect and a becoming regard for the sovereign acts of a coequal branch prevents this Court from prying into the internal workings of the Senate. To repeat, this Court will be neither a tyrant nor a wimp; rather, it will remain steadfast and judicious in upholding the rule and majesty of the law."75 (footnote omitted, ital. in original)
Following the principles of Ballin and Santiago, I submit that the Court ought to take a deferential stance in interpreting the rule-making power of the Senate as a co-equal branch of government, so long as rights of private parties are not infringed.76 The Rules of Procedure Governing Inquiries is akin to the Senate Rules (of proceeding) in that the former governs the internal workings of the Senate and its committees, although admittedly different in some respects from the Senate Rules because it affects rights of parties not members of the Senate and, hence, requires publication. To the extent that the Rules of Procedure Governing Inquiries does not transgress the requirement of due process as its outer limit, the Senate should be given room to interpret the duration of its effectivity from one Congress to the next.
Similar to Ballin, there is no standard set by Article VI, Section 21 of the 1987 Constitution, as to the manner and frequency of publication of the Rules of Procedure Governing Inquiries. It is within the competency of the Senate to prescribe a method that shall reasonably conform to the due-process purpose of publication, and the Senate has validly provided the method of one-time publication of its Rules of Procedure Governing Inquiries in two newspapers of general circulation, in line with the ruling in Tañada.
The unbroken practice of the Senate of not adopting Rules of Procedure Governing Inquiries and publishing the same in every Congress, owing to its nature as a continuing body, is not something to be lightly brushed aside,77 especially considering the grave consequences of cutting this continuity. Holding itself to be a continuing body, the Senate has dispensed with the adoption not only of Rules of Procedure Governing Inquiries, but also of Senate rules (of proceedings) at the start of every Congress in the last ten years.78 As a consequence of the absence of rules if the Senate is held to be not a continuing body, its acts during these Congresses may be put into question. A mathematical calculation of a quorum in view of the staggered terms of the Senate membership cannot simply subvert the deeply-entrenched thought-out rationale for the design of a continuing and stable Senate, shown to be necessary in promoting effective government and protecting liberties.
Where rights are not violated, the Court ought not like lightning strike down a valid rule and practice of a co-equal branch of government, lest the walls delineating powers be burned.
I vote to grant the Motion for Reconsideration.
REYNATO S. PUNO
Chief Justice
Footnotes
1 Bruhl, A., "If the Judicial Confirmation Process is Broken, Can a Statute Fix It?" 85 Nebraska Law Review 960 (2007).
2 Motion for Reconsideration, pp. 4-6.
3 220 Phil. 422 (1985); Resolution of Motion for Reconsideration, 230 Phil. 528 (1986).
4 1935 Phil. Const., Art. III, §6 provides, viz:
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.
5 Tañada v. Tuvera, 230 Phil. 528, 533-535 (1986); The Veterans Federation of the Philippines v. Reyes, G.R. No. 155027, February 28, 2006, 483 SCRA 526; Umali v. Estanislao, G.R. No. 104037, May 29, 1992, 209 SCRA 446.
6 National Association of Electricity Consumers for Reforms v. Energy Regulatory Commission, G.R. No. 163935, February 2, 2006, 481 SCRA 480; Pilipinas Kao, Inc. v. Court of Appeals, G.R. No. 105014, December 18, 2001, 372 SCRA 548; Cawaling, Jr. v. COMELEC, G.R. No. 146319, October 26, 2001, 368 SCRA 453.
7 1 Records of the Senate 541 (1995), 10th Cong., 1st Reg. Sess., August 21, 1995.
8 An erratum was published in both The Philippine Star and the Philippine Daily Inquirer on December 5, 2006, stating that the following statements were inadvertently omitted from the publication of the Rules of Procedure Governing Inquiries on December 1, 2006, viz:
· "Adopted August 21, 1995; published in the August 24, 1995 issues of Malaya and Philippine Star; the Rules of Procedure Governing Inquiries in Aid of Legislation can also be accessed at the Senate website: www.senate.gov.ph"
· "No amendments have been made in the Rules since its adoption."
9 Motion for Reconsideration, p. 87.
10 Dissenting and Concurring Opinion of Justice Antonio T. Carpio.
11 Motion for Reconsideration, pp. 87-88.
12 2 Records of the Constitutional Commission, pp. 47-48.
13 Id. at 208.
14 5 Records of the Constitutional Commission, pp. 433-434.
15 U.S. Const., Art. 1, §3 provides in relevant part, viz:
The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year…(emphasis supplied)
16 Keefe, W. & Ogul, M., The American Legislative Process 45 (4th ed. 1977).
17 The Federalist (J. Cooke ed., 1961).
18 Gold, M. & Gupta, D., "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster," 28 Harvard Journal of Law and Public Policy 205, 243-244 (2004), citing 86 Cong. Rec. 117, 151 (1959), citing (statement of Sen. Talmadge) (quoting The Federalist No. 39 [James Madison]).
19 Seitz, V. & Guerra, J., "A Constitutional Defense of ‘Entrenched’ Senate Rules Governing Debate," Journal of Law and Politics, 1, 21 (2004), citing 2 The Records of the Federal Convention of 1787 at 6 "(the Senate was to ‘check the 1st. branch, to give more wisdom, system, & stability to the Govt.’); The Federalist No. 63 (James Madison) (the Senate facilitates democracy by providing stability, a measure for gradual change, and a sense of national character); see also Cynthia R. Farina, "The Consent of the Governed: Against Simple Rules for a Complex World," 72 Chicago-Kent Law Review 987, 1016 n. 122 (1997) (the staggered election of Senators ‘increases institutional stability by rendering the Senate an effectively continuous body in contrast to the House, which must fully reconstitute itself every two years’) (citing The Federalist No. 63 [James Madison])." Id. (emphasis supplied)
20 Seitz, V. & Guerra, J., "A Constitutional Defense of ‘Entrenched’ Senate Rules Governing Debate," Journal of Law and Politics, 1, 21 (2004), citing 3 The Records of the Federal Convention of 1787 at 337 (M. Farrand ed., rev. ed. 1966).
21 Id., citing 3 The Records of the Federal Convention of 1787 at 538.
22 Id., citing 3 The Records of the Federal Convention of 1787 at 340 (citing Mr. Davie’s debate in the North Carolina ratification convention).
23 Gold, M. & Gupta, D., "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster," 28 Harvard Journal of Law and Public Policy, 205, 244 (2004), citing 86 Cong. Rec. 117, 152 (1959) (statement of Sen. Talmadge) (quoting The Federalist No. 64 [John Jay]).
24 1 The Records of the Federal Convention of 1787 at 426 (M. Farrand ed.).
25 Id.
26 Id. at 431.
27 273 U.S. 135 (1927).
28 Id. at 181.
29 Id.
30 87 Phil. 29 (1950).
31 Id. at 61-63.
32 1935 Phil. Const., Art. VI, §10(2) and 1987 Phil. Const., Art. VI, §16(2) provide, viz:
… A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner and under such penalties as such House may provide.
33 The Dissenting and Concurring Opinion of Justice Carpio, cited by the Resolution and the Comments of the petitioner and the OSG, contended that the Senate under the 1987 Constitution had lost its continuing nature because less than a quorum or majority continue into the subsequent Congress. This contention cites, as support, Attorney General Ex. Rel. Werts v. Rogers, et al., 56 N.J.L. 480, 652 (1844), and quotes the relevant portions of said case as "the Supreme Court of New Jersey declared." With due respect, the following portions of the Werts case quoted by the Dissenting and Concurring Opinion of Justice Carpio were statements made not by the Supreme Court of New Jersey, but by Justice Abbett in his Dissenting Opinion in that case, viz: "(T)he vitality of the body depends upon the existence of a quorum capable of doing business. That quorum constitutes a senate. Its action is the expression of the will of the senate, and no authority can be found which states any other conclusion. All difficulty and confusion in constitutional construction is avoided by applying the rule x x x that the continuity of the body depends upon the fact that in the senate a majority constitutes a quorum, and, as there is always more than a quorum of qualified senators holding seats in that body, its organic existence is necessarily continuous. x x x The senate of the United States remains a continuous body because two-thirds of its members are always, in contemplation of the constitution, in existence."
As stated in the Dissent of Justice Abbett, the New Jersey Senate is composed of 21 senators, divided as equally as possible into three classes. Their term of office was three years. The seats of the senators of the first class were vacated at the expiration of the first year, of the second class at the expiration of the second year, and of the third class at the expiration of the third year, so that, following the New Jersey constitution, one class may be elected every year.
At the November 1893 election, eight senators were elected to replace the senators whose terms of office would expire on January 8, 1894. On January 9, 1894, the day designated for commencing the annual session of the legislature, there were thirteen "remaining senators," and eight senators-elect. Nine of the "remaining senators" met in the senate chamber and elected one of them as their presiding officer, and thereafter claimed to have elected him president of the senate on the assertion that the four other "remaining senators" were actually or constructively present at the time of his election.
In addressing the issue of whether the president of the senate was validly elected, Justice Abbett contended that he was not. With a 21-member senate of New Jersey, the quorum was eleven and there were only nine of the "remaining senators" who met on January 9, 1894, two senators short of a quorum. He opined that for purposes of satisfying the quorum requirement, only the thirteen "remaining senators," and not the newly elected senators, could be counted as the "senate is a continuous body… consisting of the thirteen senators composing the two classes whose terms of office had not then expired."
This was the context of the above quote from the Dissent of Justice Abbett in the Dissenting and Concurring Opinion of Justice Carpio. Clearly, this finds no application in the Philippines where both the "remaining senators" and newly elected senators present are counted for purposes of satisfying the majority quorum requirement as will be subsequently shown.
34 1935 Phil. Const., Art. VI, §20(2) provides, viz:
(2) The President shall have the power to veto any particular item or items of an appropriation bill, but the veto shall not affect the item or items to which he does not object. When a provision of an appropriation bill affects one or more items of the same, the President cannot veto the provision without at the same time, vetoing the particular item or items to which it relates. The item or items objected to shall not take effect except in the manner heretofore provided as to bills returned to the Congress without the approval of the President. If the veto refers to a bill or any item of an appropriation bill which appropriates a sum in excess of ten per centum of the total amount voted in the appropriation bill for the general expenses of the Government for the preceding year, or if it should refer to a bill authorizing an increase of the public debt, the same shall not become a law unless approved by three-fourths of all the Members of each House. (emphasis supplied)
35 Defensor-Santiago v. Ramos, 323 Phil. 665 (1996).
36 1 Journal of the Phil. Senate, 14th Congress, 1st Reg. Sess., July 23 & 24, 2007.
37 1 Records of the Senate, 11th Congress, 1st Reg. Sess., July 27, 1998, pp. 3-4. The following exchanges in the Senate upon opening of the 11th Congress are relevant, viz:
"Senator Tatad. Mr. President, Article VI, Section 4 of the Constitution, as just read by the Secretary, provides that ‘The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.’
I am not aware of any law that has modified this, and to the best of my knowledge, all the 12 new Senators entered into the performance of their duties on the 30th day of June this year. This means that they all have already taken their oath of office.
To require them to take their oaths of office anew, 27 days after they have done so, might not only be a superfluity, it might also be interpreted by the public as trifling with the office of the senator.
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The Presiding Officer (Sen. J. Osmeña). The Acting Majority Leader will please respond.
Senator Drilon. There is no question, Mr. President, that indeed, the terms of office of the new Senators took effect in accordance with the Constitution. If they are going to take their oaths now, it is a matter of tradition and formality, and should not in any way affect their respective terms of office."
38 1987 Phil. Const., Art. VI, §15 provides, viz:
Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.
39 1 Records of the Senate, 4th Cong., 1st Reg. Sess., January 27, 1958, pp. 1-2; 1 Records of the Senate, 3rd Cong., 1st Reg. Sess., January 25, 1954, pp. 1-2.
40 1 Records of the Senate, 14th Cong., 1st Reg. Sess., July 23, 2007, p. 3; 1 Records of the Senate, 13th Cong., 1st Reg. Sess., July 26, 2004, p. 6; 1 Records of the Senate, 12th Cong., 1st Reg. Sess., July 23, 2001 p. 3; 1 Records of the Senate, 11th Cong., 1st Reg. Sess., July 27, 1998, pp. 4-5; 1 Records of the Senate, 10th Cong., 1st Reg. Sess., July 24, 1995, p. 3; 1 Records of the Senate, 9th Cong., 1st Reg. Sess., July 27, 1992, p. 3.
41 Mcginnis, J. & Rappaport, M., "The Constitutionality of Legislative Supermajority Requirements: A Defense," 105 Yale Law Journal 483 (1995), citing Walz v. Tax Commission, 397 U.S. 664, 678 (1970).
42 Journal of the U.S. Senate, 2d Cong., 1st Sess., October 24, 1791, pp. 821-824.
43 U.S. Congressional Record, Proceedings and Debates of the 110th Congress (Senate), 1st Sess., January 4, 2007, pp. 4-5.
44 1 The Records of the Federal Convention of 1787 at 395-435 (M. Farrand ed.).
45 2 The Records of the Federal Convention of 1787 at 251-253 (M. Farrand ed.); Williams, J., "How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress," 48 William and Mary Law Review 1025 (2006).
46 2 The Records of the Federal Convention of 1787 at 251-253 (M. Farrand ed.).
47 1 The Records of the Federal Convention of 1787 at 549 (M. Farrand ed.).
48 2 The Records of the Federal Convention of 1787 at 251-253 (M. Farrand ed.).
49 Prior to its repeal by Republic Act No. 9006 in 2001, Section 67 of Batas Pambansa Blg. 881 provided, viz: "Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy." (Fariñas v. The Executive Secretary, 463 Phil. 179 [2003])
50 U.S. Const., Art. I, §5 provides, viz:
Each House may determine the Rules of its Proceedings…
51 Gold, M. & Gupta, D., "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster," 28 Harvard Journal of Law and Public Policy 205, 225 (2004).
52 Standing Rules of the U.S. Senate, Rule V.
53 Walker, H., The Legislative Process 195 (1948).
54 Dunn, C., "Playing by the Rules: The Need for Constitutions to Define the Boundaries of the Legislative Game with a One-Subject Rule," 35 University of West Los Angeles Law Review 129, 133 (2002-2003).
55 1987 Phil. Const., Art. VI, §15 provides, viz:
Section 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless a different date is fixed by law, and shall continue to be in session for such number of days as it may determine until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal holidays. The President may call a special session at any time.
56 Id.
57 1 Journal of the Phil. Senate, 14th Cong., 1st Reg. Sess., July 23 & 24, 2007.
58 1987 Phil. Const., Art. VI, §16(3) provides, viz:
(3) Each House may determine the rules of its proceedings…
59 Seitz, V. & Guerra, J., "A Constitutional Defense of ‘Entrenched’ Senate Rules Governing Debate," Journal of Law and Politics 1, 19 (2004), citing Miller, M., Comment, "The Justiciability of Legislative Rules and the ‘Political’ Political Question Doctrine," 78 California Law Review 1341, 1358 (1990) (explaining that the Rules of Proceedings Clause did not appear in any of the draft Constitutions presented in Philadelphia and made its first appearance only in the Committee of Detail, where it apparently was adopted without discussion); Dunn, C., "Playing by the Rules: The Need for Constitutions to Define the Boundaries of the Legislative Game with a One-Subject Rule," 35 University of West Los Angeles Law Review 129 (2002-2003), citing 1-5 Farrand, M., The Records of the Federal convention of 1787 (1998); and R. Luce, Legislative Problems 185 (1935).
60 Williams, J., "How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress," 48 William and Mary Law Review 1025, 1068 (2006), citing 3 Story, J., Commentaries on the Constitution of the United States, 298 (1987 ed.) (1833).
61 Dunn, C., "Playing by the Rules: The Need for Constitutions to Define the Boundaries of the Legislative Game with a One-Subject Rule," 35 University of West Los Angeles Law Review 129 (2002-2003).
62 Id., citing Jefferson, T., A Manual of Parliamentary Practice 13 (1873).
63 144 U.S. 1 (1892); Taylor, P., "Proposals to Prevent Discontinuity in Government and Preserve the Right to Elected Representation," 54 Syracuse Law Review 435 (2004).
64 Williams, J., "How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress," 48 William and Mary Law Review 1025, 1069 (2006).
65 Id. at 1069-1070, citing Cannon, J., "Dramatic Scenes in My Career in Congress. II - When Reed Counted a Quorum," 140 Harper’s Magazine 433, 434 (1920).
66 Id.
67 Williams, J., "How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress," 48 William and Mary Law Review 1025, 1070 (2006), citing 21 Cong. Rec. 949-51 (1890).
68 Rule XV provides, viz: "... (3) On the demand of any member, or at the suggestion of the speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business." House Journal 230, Feb. 14, 1890, cited in United States v. Ballin, 144 U.S. 1, 5 (1892).
69 Williams, J., "How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress," 48 William and Mary Law Review 1025, 1070 (2006).
70 United States v. Ballin, 144 U.S. 1 (1892).
71 Id. at 3-4.
72 Id. at 3.
73 Id. at 5-6.
74 359 Phil. 276 (1998).
75 Id. at 300-301.
76 Dunn, C., "Playing by the Rules: The Need for Constitutions to Define the Boundaries of the Legislative Game with a One-Subject Rule," 35 University of West Los Angeles Law Review 129, 140 (2002-2003), citing Jagt v. O’Neill, 699 F.2d 1166, 1172 (D.C. 1983).
77 Mcginnis, J. & Rappaport, M., "The Constitutionality of Legislative Supermajority Requirements: A Defense," 105 Yale Law Journal 483 (1995), citing Walz v. Tax Commission, 397 U.S. 664, 678 (1970).
78 1 Records of the Senate, 14th Cong., 1st Reg. Sess., July 23, 2007; 1 Records of the Senate, 13th Cong., 1st Reg. Sess., July 26, 2004; 1 Records of the Senate, 12th Cong., 1st Reg. Sess., July 23, 2001; 1 Records of the Senate, 11th Cong., 1st Reg. Sess., July 27, 1998.
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