The constitutional convention and Congress in the Philippines

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Part of Panorama

Title: The constitutional convention and Congress in the Philippines
Language: English
Source: Volume XIX (Issue No. 2) February 1967
Year: 1967
Subject: Constitutional conventions; Constitutional reform; Laurel, Jose B., Jr.
Rights
Abstract: The following is an address of current interest and significance delivered by the Hon. Jose B. Laurel, Jr., Speaker of the House of Representatives of the Philippines, February 13, 1967
Fulltext: ■ The following is an address of current interest and significance delivered by the Hon. Jose B. Laurel, Jr., Speaker of the House of Representatives of the Philippines, February 13, 1967. THE CONSTITUTIONAL CONVENTION AND CONGRESS IN THE PHILIPPINES I am .strongly in favor of the reexamination of our Constitution with a view to making it more responsive to present needs and reflec tive" of our status as an in dependent country. And, un less we propose to consider only a few isolated changes, I feel that the task should be undertaken not by Con gress but by a constitutional convention. As I said in a privileged speech almost tweaty years ago, changing the'fiSflStitution by means of a Constitutional conven tion would be more democra tic than by mere congres sional action. The reason is that it would give the people an opportunity to directly choose the delegates for the particular task qf restudying the Constitution, and for this task only. Direct interference by those who, for the mo ment, are well entrenched by the political departments of the government can be mi nimized if not avoided. However, I cannot agree with the proposal to make senators and representatives ex officio delegates to the proposed convention. In my humble opinion this arrange ment would be violative of the Constitution besides be ing politically unwise. Article VI, Section 16 of the Constitution decrees inter alia that “no Senator or Member of the House of Re presentatives may hold any other office or employment in the Government without forfeiting his seat.” To my mind, this provision is a sweeping prohibition against the concurrent holding by members of Congress of their seats both as legislators and as delegates to the constitu tional convention. There is a similar provi sion in the Constitution of the United States after which 2 Panorama our own was patterned, but it must be noted that ours is wider in scope and, there fore, stricter in its prohibi tion. The rule in the United States applies only to the holding of "any office" in the government but our own Constitution embraces not only offices but even mere employment. Consequently, none of us in the Legislature can be employed, in, say, even a temporary and clerical position in the government, much less an office, which is essentially permanent and discharges sovereign func tions, without abandoning his seat in Congress. I maintain that member ship in the constitutional convention is an office of the highest order and, therefore, should come within the terms of Article VI, Section 16, of the Constitution. A public office, according to Professor Mechem, is "the right, authority and duty created and conferred by law by which for a given period, either fixed by law or en during at the pleasure of the creating power; an individual is invested with some portion of the sovereiign functions of the government, to be exer cised by him for the benefit of the public." According to Professor Sinco, in his standard work on Philippine Political Law, at p. 44 of its Eleventh Edition, a constitu tional convention is "a part of the existing government” charged with the specific duty of "framing a constitution or revising the existing const i t u t i o n, or formulating amendments to it.” I cannot understand how some people can seriously contend that the position of delegate to the Constitutional Convention is not an office in the government of the Republic of the Philippines. Conformably to Section 2 of the Revised Administrative Code, "functions of govern ment are exercised” by it and the highest form of “political authority is made effecfUVe” through it, much more im periously, in f a c t, than through the other depart ments. Doubtless, vdien the Constitution qualified the words “office or employment" with the phrase “in the Gov ernment," it meant merely to specify public as distin guished from private offices, such‘as those in the National Coconut Corporation, as an nounced by the Supreme Court in Bacani v. National February 1967 3 Coconut Corporation. It cer tainly did not mean to ex clude from its scope member ship in the Constitutional Convention, a public office of the most exalted kind. Now, it is to be noted that the constitutional provision in question does not distin guish among the different kinds of offices, which means that all of them, without ex ception, are intended to be covered by the prohibition. Ubi lex non distinguit nec non distinguere debemus. The suggestion that per diems be given to delegates who do not receive any salary from the government and none to those who do, would make the same position lucra tive in some cases and honor ary in others — a queer situa tion, indeedl But this would makle no> difference. It is well-settled that compensa tion is not an indispensable element of a public office and that a person holding a position in the public service may be a public officer even if he serves without com pensation. Let us not for a moment think that a per diem is not compensation simply because it is not paid by the month or by the year like a regular salary. In fact, a per diem can even be more lucrative than a fixed salary. Assuming that the posi tions whlich legislators will assume in the convention are not offices in the constitu tional sense — and this I deny — they would still constitute employment in the sense of the Constitution and there fore within the constitutional prohibition. On this point, let me say that I do not agree with the view that em ployment is inferior to an of fice because the word employ ment is broad enough to cover the term office. Every office is an employment although not every employment is an office. In any event, looked at either as an office or as an employment,-the participation of legislators in the constitu tional convention while con currently sitting as members of Congress would be viola tive of the fundamental law. I realize that there are no precedents to guide us on this important question either here or in the United States. Neither our Constitution nor the Federal Constitution has been revised by means of a convention. In the long his tory of the United States, all amendments were proposed 4 Panorama by Congress and ratified by the state legislatures, except the twenty-first amendment, by which Prohibition was re pealed, which was allowed to be ratified by state legisla tures or state conventions. In the Philippines all five amendments — i.e., the 1939 amendments adopted pur suant to the Tydings-Kocialkowski Act, the 1940 changes replacing the National As sembly with the Congress of the Philippines, shortening the President’s term of office from 6 to 4 years but with one re-election, and creating the Commission on Elections, as well as the so-called Parity Amendment of 1947 — were proposed by congressional ac tion and ratified in plebis cites. This circumstance certain ly complicates our problem and should warn us that we are treading on dangerous ground by insisting on giving members of Congress ex of ficio membership in the Constitutional Convention. What would happen if, in a proper case, our Supreme Court should declare that the members of the legislature who have taken the oath as delegates to the constitu tional convention have auto matically forfeited their seats in Congress? Would this not have the effect of practically, if not completely, dissolving the legislative branch of our government? And who then would certify to the existence of vacancies in Congress to enable the President to call a special election to fill said vacancies? Who would pro vide the necessary funds for the holding of said election? I am not unmindfurof the recognized exception to this provision, which is, that members of Congress may hold another office or em ployment in the government, without forfeiting their seaits if the second position can be justified as in aid of their legislative functions. To be sure, a number of legislators have, without ceasing as such participated in interna tional conferences or nego tiations as representatives of the President of the Philip pines or as members of such bodies as the National Eco nomic Council and the Board of Regents of the University of the Philippines. Never theless, I believe that mem bership in a constitutional convention is highly incom patible with membership in the legislature, for only by February 1967 5 the widest stretch of the ima gination can we consider the former as in aid of legislative duties. And neither can we say the membership in the constitutional convention is a mere extension of the con gressional office for indeed, the framing or revision of the fundamental law is a so vereign function of the high est order and cannot in any sense be considered subordi nate to the task of enacting ordinary legislation. In fact, it is very doubtful whether, in the absence of express constitutional au thority, Congress can propose amendments to our noble charter. Ordinary law-mak ing power does not cover the constituent power to estab lish or institute government which is a function inherent, in the sovereign people. On the other hand, the constitu tional convention, once con vened, can overhaul the en tire structure of the govern ment, including the legisla tive department, subject, of course, to ratification by the people; and, while acting within the scope of its au thority, it is not subject to the control of the Executive, to judicial review by the Supreme Court, or to the in terference of the legislature. Yet, direct legislative inter ference is exactly what would result if members of Congress were allowed to sit as ex officio delegates to the cons titutional convention. Furthermore, it should be recalled that under Article VI, Section 9, of the Consti tution, Congress is required to meet in regular session on the fourth Monday of Jan uary each year, and herein lies another constitutional objection. For while it is true that the constitutional convention may be made to start its session during the congressional recess, there is absolutely no guaranty that it will be able to conclude its task before it meets in re gular session the following year, not to speak of the pos sibility that Congress may be called into special session by the President. While it is true that only an irresponsi ble President will call a spe cial session simply to embar rass the members of Congress, the urgent need for such ses sion may arise -while the con vention is functioning. At any rate, the possibility is there. In such a case, con gressmen and senators would be confronted with the dif 6 Panorama ficult problem of having to choose between attending the sessions of Congress or the sessions of the constitutional convention. And if they should prefer the latter, the Congress would have to be immobilized for lack of quo rum and it would be doubt ful if they could be arrested and compelled to attend the sessions of Congress if they should be attending the deli berations of the constitu tional convention which is expected to be endowed with a similar authority to compel attendance of its members. A final legal point is that under Article XV of the Constitution Congress is al lowed to amend the funda mental law either by con gressional action only or by callihg a constitutional con vention. If it is our desire to propose such amendments to the Constitution as we may choose, we may do so, but this should be done by us directly and without re sorting to the alternative of holding a convention. The use of the disjunctive or rules out the adoption of a third or any other additional me thod, like the proposal to amend the Constitution through a convention with Congress as an ex officio ad junct thereof. There is cer tainly no reason why we should depart from the tra ditional mode of constituting a convention and undertake to authorize what the Cons titution does not intend or contemplate. In fact, a study of the constitution of various states in the United States will show that, as in our case and that of the Federal Cons titution, the memberships of their respective constitutional conventions do not include the members of their legis latures, even as ex officio de legates. I am much impressed by the argument that if Con gress had full legal authority to specify the membership of the convention, then it could empower even private citi zens, such as the presidents of civic organizations, to sit as delegates. If we are to agree with this hypothesis, then we could also legally provide that only members of Congress shall sit as dele gates to the convention, thereby nullifying the alter native methods of amending our Constitution as indicated in Article XV. This would February 1967 7 also run counter to thq, doc trine emphasized by Judge Jameson that the legislature itself may not name the dele gates to constitute the con vention, for it might name a committee of its own mem bers or some other small body which is likely to be “subser vient to the power which created it.” ‘Furthermore, such a scheme would militate against the philosophy of this article, which envisions a constitutional convention to be composed of delegates elected by the people for the specific purpose of amending the Constitution. There is no better way of ascertain ing and reflecting the popu lar will than through popu lar election. From the political stand point, there are also a num ber of objections worthy of our attention. First of all, it should be noted that if we were to add to the regular delegates of the convention the 128 mem bers of the legislature, the convention would have a to tal membership of 326 under the proposal, if we are to elect two regular delegates per congressional district. And if we should include the surviving delegates to the Constitutional Convention of 1935, as well as the eleven justices of the Supreme Court, as suggested in certain quarters, we would have 115 additional members, further increasing the membership of the new convention to 431, which is certainly more than twice the number of dele gates who constituted the original convention. The re sult would be an extremely cumbersome body that, more likely than not, would be un able to perform its vital task systematically and with des patch. Finally, t h e important point should never be over looked that if the election of delegates is to be held this year, and all the members of the legislature are included as ex officio members of the convention, all the congress men and no less than sixteen members of the Senate will have infiltrated the Conven tion without a clear and fresh mandate from the elec torate to participate in the task of changing the Consti tution. This is so because only eight members of the Senate will be chosen with local officials this coming Panorama November. And if the sug gestion to include the sur viving delegates of the ori ginal constitutional conven tion and the eleven Justices of the Supreme Court is ac cepted, then we shall have no less than 131 members in the proposed constitutional convention who shall be without any direct authority from the people to revise the Constitution. And, if only one delegate per congres sional district is elected, these will be outnumbered by exofficio members. As pointed out in In re Opinion to the Governor, 178 A. 433, in answer to the question, among others, of whether or not the legisla ture could provjide that the general officers of the state shall by virtue of their of fices be iriembers of the cons titutional convention: “A constitutional con vention is an assembly of the people themselves act ing through their duly elected delegates. The delegates in such an assem bly must therefore come from the people who choose them for this high purpose and this purpose alone. They cannot be im posed upon the convention by any other authority. Neither the Legislative nor any other department of the government has the power to select delegates to such a convention. *The delegates elected by and from the people, and only such delegates, may and of right have either a voice or a vote therein. “xxx/No one not a dele gate, no matter how exalt ed his station in the exist ing government can be as sured either a voice or a vote in such a convention unless he comes there with a commission from the peo ple as their delegate, al though the convention it self may if it please invite him to address it or give it counsel, in which case he will be in the convention by invitation and not by virtue of his office.” In view of all this, I am personally of the conviction that ^Members of the Con gress of the Philippines should not hp allowed to sit as ex officio delegates to the proposed constitutional con vention. Nevertheless, if it is the feeling of Congress that the membership of legisFebruary 1967 9 la tors is essential and in or der not to deprive the con vention of the services of ca pable Mpmbers of Congress, then I suggest that we submit the question to the people, giviing them the privilege to determine the issue for them selves in their sovereign capa city. This we can effect by means of a proposed amend ment I submitted two years ago rewording Article VI, Section 16, of the Constitu tion so as to make it read as follows: “No senator or member of the House of Re presentatives may hold em ployment in the government, except as member of the constitutional convention that may be called pursuant to Article XV, without forfeit ing hfis seat xxx.” The pro posal can then be approved by three4ourths of all the members of the two Houses of Congress voting separately and subsequently submitted for ratification by the people preferably in the regular election to be held in Novem ber this year. In this way, we shall be able to overcome constitu tional objections if the peo ple ratify the said amend ment regardless of the subs tantive merits thereof or the arguments that have been raised against it. The impor tant thing is that the people s will, be it right or wrong, shall have been expressed freely and categorically on the question of the dual membership of legislators in Congress and the constitu tional convention. In any event, I should like to voice the hope that if and when this constitutional con vention is finally called, its members shall approach their solemn responsibility with the highest sense of duty and patriotism and without re gard to partisan considera tion or personal ambitions. Only thus, I feel, can they make of our Constitution the fulfillment and the flowering of liberty for all Filipinos, not only now or a hundred years from now, but for all eternity. — By Speaker Jose B. Laurel, Jr. in the Manila Bulletin, February 15, 1967. 10 Panorama