Why should the Senate be a continuing body?

One of the clearest articulations of the theory of Senate as a continuing body is, as mentioned by Justice Antonio Nachura, the landmark case of Arnault v. Nazareno, G.R. 3820 (July 18, 1950).  There, the Supreme Court held:

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 in May 18, 1950.

Had said resolution of commitment been adopted by the House of Representatives, we think it could be enforced until the final adjournment of the last session of the Second Congress in 1953. 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 the power is recognized in the legislative body as an essential and appropriate auxiliary to is 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 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.Here the Court links the “continuing” character of the Senate with the staggered terms of its membership, and concludes from its characterization that the chamber is a “continuing body” that its power to punish for contempt does not end with a congressional term.

That of course does not answer the question why it has to be a “continuing chamber.”

 In its Resolution in the case of Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. 180643 (September 4, 2008), the Court drew a distinction between the “continuity of the Senate as an institution” and the day-to-day business of the Senate.  Of this, the Court, drawing from the Rules of the Senate itself, maintained that the Senate of each Congress acts separately and independently of its predecessors.  The Court thus proceeded to rule that the publication of the Rules of one Senate did not satisfy the requirement that rules be published, for succeeding Senates.

We are therefore taken a step farther, but really not too far, for insofar as the “continuance” of the Republic’s institutions are concerned, this would not be peculiar nor particular to the Senate but to all institutions of the Republic laid down by the Constitution.  But is there something more, something analogous to the Supreme Court’s “continuity” by which it takes judicial notice of its own decisions in previous cases and by which its present acts bind future acts of the Court unless a future Court should deliberately and collegially vote to alter its course.

In League of Cities of the Philippines v. COMELEC, G.R. 176951 (November 18, 2000) that saw the high court twist and turn and pirouette of the issue of the cityhood of municipalities that aspired after cityhood status, the Court ruled that Congress is not a continuing body—without any specific reference to the Senate.

Congress is not a continuing body. The unapproved cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills enacted into law in the 13th or subsequent Congresses.

The members and officers of each Congress are different. All unapproved bills filed in one Congress become functus officio upon adjournment of that Congress and must be re-filed anew in order to be taken up in the next Congress. When their respective authors re-filed the cityhood bills in 2006 during the 13th  Congress, the bills had to start from square one again, going through the legislative mill just like bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the Senate, on Unfinished Business, provides:

Sec. 123. x x x

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied)

Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states:

Section 78. Calendar of Business. The Calendar of Business shall consist of the following:

a. Unfinished Business. This is business being considered by the House at the time of its last adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the end of a session shall be resumed at the commencement of the next session as if no adjournment has taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated. (Emphasis supplied)

Thus, the deliberations during the 11th  Congress on the unapproved cityhood bills, as well as the deliberations during the 12th  and 13th Congresses on the unapproved resolution exempting from RA 9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws passed by subsequent Congresses.

But of course, nothing is new is really taught us that we already did not know, but it does make us careful about a possible difference in the characterization of Congress as a whole and one of its chambers!

McGrain v. Daugherty, 273 U.S. 135 (1924) is more helpful.  It goes into the consequences of the theory of Senate as a “continuing body.”

 Mr. Hinds in his collection of precedents says:

• ‘The Senate, as a continuing body, may continue its committees through the recess following the expiration of a Congress.’

And, after quoting the above statement from Jefferson’s Manuel, he says:

• ‘The Senate, however, being a continuing body, gives authority to its committees during the recess after the expiration of a Congress.’

So far as we are advised the select committee having this investigation in charge has neither made a final report nor been discharged; nor has it been continued by an affirmative order. Apparently its activities have been suspended pending the decision of this case. But, be this as it may, it is certain that the committee may be continued or revived now by motion to that effect, and, if continued or revived, will have all its original powers.  [273 US 135, 182]   This being so, and the Senate being a continuing body, the case cannot be said to have become moot in the ordinary sense. The situation is measurably like that in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 US 498, 514-516, 31 S. Ct. 279, where it was held that a suit to enjoin the enforcement of an order of the Interstate Commerce Commission did not become moot through the expiration of the order, where it was capable of repetition by the commission and was a matter of public interest. Our judgment may yet be carried into effect, and the investigation proceeded with from the point at which it apparently was interrupted by reason of the habeas corpus proceedings. In these circumstances we think a judgment should be rendered as was done in the case cited.   (emphasis supplied)

This being the concept of Senate as a “continuing body,” the characterization is by no means effete, because business commenced by Senate in one Congress need not become moot on upon the end of the term of such a Congress.  It would then appear that it was the Philippine Supreme Court that did not appreciate the full implication of the “continuing character” of the Senate.  Obviously, when the framers both of the 1987 Constitution chose to stagger the terms of the Senators, they were obviously abiding by a concept of the Senate that is clearly of American provenance and vintage.

The composition of the Philippine Senate under our ConCom proposals thus far is not too different from the composition of the Council of States under the Constitution of India that is one of the two houses of Parliament.  The Council of States is “a permanent body,” with its membership serving in staggered terms.  Quite interestingly, the Constitution of India underscores this difference by prescribing that “a Bill pending the Council of States which has not been passed by the House of the People shall not lapse on a dissolution of the House of the People.” By contrast, “a Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the Council of States, shall, subject to the provisions of Article 108 lapse on a dissolution of the House of the People.”

Constitutional theorists have also remarked on the resiliency of the French Senate despite attempts of several strong presidents to dismantle it.  De Gaulle tried to reform it out of existence, and lost, and resigned his office as a result of his defeat.  French senators are chosen for nine-year terms, although a reform law of 2003 reduced the senatorial term to six years, one third of the membership of the Senate being renewed every three years and, in this sense, it is a continuing body. 

Precisely because the Senate we contemplate is a college of regional representatives, there is greater need for it to be a “continuing body” as American jurisprudence (and partly by Indian constitutional theory) has understood it: principally, in the sense that business  commenced in the Senate under one Congress need not be restarted from “ground zero” in the next Congress because of the “continuing” character of the Senate.

It is instructive that the 1987 Constitution and the 1935 Constitutions of the Philippines have staggered senators’ terms—thus assuring the continuity of the chamber, in the same way that the French stagger the terms of their Senators.

This fact alone suggests the continuing usefulness of the concept of Senate as a “continuing chamber” or body and the adoption of the concept by our Committee.

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Topics: Antonio Nachura , House of Representatives , Opinion , 1987 Constitution
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