HON. REYNALDO V. UMALI
Chairman
Committee on Justice
House of Representatives
Constitution Hills, Quezon City

 

RE: Position Paper on the Right of Non-Members of the Committee on Justice to Participate in the Impeachment Proceedings.

 

Dear Chairman Umali,

This is also in response to Your Honor’s instruction (and that of Hon. Rodolfo C. Fariñas, Majority Leader) during the last meeting of the Committee on Justice on 05 October 2017, for interested Representatives to submit their respective position papers on the right of non-members to participate in the impeachment proceedings before the Committee on Justice.

It is the immutable and inflexible tradition in the House of Representatives that House Members who are not members of standing and special committees have the right to participate in the proceedings of the committees without the right to vote.

This is known as the “right of voice, but not of vote”.

The rationale for this right to participate or right of voice is well anchored on the following:

(1) All congressional committees are established or created by the Plenary. They are creations by majority vote of the House. Verily, a Representative who participates in the creation of a committee cannot be barred or deprived from participating in the deliberations of a committee thus created. Accordingly, a creator cannot be discriminated against or gagged by the created committee.

(2) This tradition is memorialized in the deliberations of committees where non-members are afforded the right to speak and participate, short of voting on motions and resolutions before the committee.

(3) I have been a member of the House way back in the 8th Congress and the subsequent 9th, 10th, 13th, 14th, 15th Congresses and the current 17th Congress or a total of seven Congresses. My invariable experience is that my colleagues and I were consistently accorded as a matter of right to participate in committee deliberations of which we were not members, including the Committee on Justice in impeachment proceedings with respect to non-members.

(4) I have been Chairman of the Committee on Agrarian Reform (8th Congress), Committee on Justice (10th Congress), Committee on Overseas Workers Affairs (13th Congress), and Committee on Appropriations (14th Congress). During my tenure as Chair of these various committees, the unchallenged rule was to allow non-members to participate in the committees’ deliberations.

(5) In fact even in an executive session of a committee, a non-committee member is allowed to attend and participate. This parliamentary practice is documented in the 2016 Parliamentary Practices in the House of Representatives Procedure and Precedents in this wise: “A Member of the House may attend and participate in a committee’s executive session but cannot vote unless he is a member of that committee.” (page 109, citing TSN, 6 Aug. 1996).

If a Member of the House who is not a member of the committee conducting an executive session, an exclusive, confidential and sensitive meeting, can attend and participate in said executive session, with more reason such non-member can attend and participate in committee proceedings like the open and public sessions and hearings of the Committee on Justice conducting impeachment proceedings.

(6) Parliamentary traditions and practices form part of the Rules of the House. Thus, Section 161 of Rule XXV of the 16th Congress, which has been adopted by the 17th Congress, provides: “The parliamentary practices of the Philippine Assembly, the House of Representatives, the Senate of the Philippines and the Batasan Pambansa shall be suppletory to these rules.”

Atty. Inocencio Pareja, a former Secretary of the House of Representatives, in his pioneering book Rules of the House of Representatives, authoritatively said that “Customs and usages of parliamentary procedure which have been so invariably observed and followed in legislative bodies as to become part and parcel of their established rules are known collectively as parliamentary practice. These are extant in the Philippines.” (p.469)

(7) Any gag rule is anathema to a deliberative assembly and congressional committee.

(8) Important and desirable inputs can be derived from the participation of non-members, which the committee may use in its resolution and committee report.

(9) Practically all substantial actions of a committee are subject to plenary approval or disapproval. Hence, at the early stage and in all phases of the committee deliberations, non-members must be allowed to participate so that they would have subsequently an informed vote in the Plenary.

(10) For example, under the pertinent provisions of the House Rules of Procedure in Impeachment Proceedings, a resolution of the Committee on Justice to dismiss the impeachment complaint or to file the Articles of Impeachment will have to be rejected or approved, respectively, by at least one-third of all the Members of the House voting in Plenary. For this reason, a non-member of the Committee on Justice must be accorded the right to participate in the impeachment proceedings so that he or she can personally obtain or elicit the necessary facts and data in order to cast an informed vote in the Plenary.

(11) Sec. 7, Art. III of the Bill of Rights provides:

“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, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.” (Emphasis supplied).

This people’s right to information is exercised directly by the citizen or by a Representative on behalf of his/her constituents. This exercise by representation is also the basis for a Representative to participate and secure information in impeachment proceedings despite his/her not being a member of the Committee on Justice.

(12) Under Section 7 of Rule II of the Rules of the House, in order to discharge a Member’s primary duty as legislator, a Representative shall:

“(d) articulate faithfully the demands and interests of their constituencies as well as those of other sectors that are affected by proposed legislative measures or by conditions, issues and concerns requiring legislative action”. (Emphasis supplied).

“(e) secure, through every lawful means possible, any and all data and information relevant and necessary for the determination and formulation of appropriate legislative actions and measures on public issues and concerns”. (Emphasis supplied).

The foregoing provisions of the House Rules implement the constitutional mandate on the citizen’s right to information which the Representative is obligated to exercise by representation. This likewise warrants the exercise by the Members of the House to participate in the impeachment deliberations without being a member of the Committee on Justice.

(13) The Rules of the House do not prohibit any Member from participating in the proceedings of any committee of which he is not a member, including the Committee on Justice.

(14) Settled is the doctrine that what is not prohibited, is allowed.

In Manila Electric Company vs. Public Service Commission (G.R. No. 42317, September 21, 1934), the Supreme Court underscored:

“It is a rule of statutory construction that what is not expressly or impliedly prohibited by law may be done, except when the act is contrary to morals, customs and public order.” (Emphasis supplied).

The foregoing 1934 decision was reiterated in the very recent ruling in Knights of Rizal vs. DMCI Homes, Inc., DMCI Project Developers, Inc., City Of Manila, National Commission for Culture and the Arts, National Historical Commission of the Philippines (G.R. No. 213948, April 18, 2017), where the High Court held:

In Manila Electric Company v. Public Service Commission, the Court held that “What is not expressly or impliedly prohibited by law may be done, except when the act is contrary to morals, customs and public order." (Emphasis by the Supreme Court). This principle is fundamental in a democratic society, to protect the weak against the strong, the minority against the majority, and the individual citizen against the government. In essence, this principle, which is the foundation of a civilized society under the rule of law, prescribes that the freedom to act can be curtailed only through law. Without this principle, the rights, freedoms, and civil liberties of citizens can be arbitrarily and whimsically trampled upon by the shifting passions of those who can shout the loudest, or those who can gather the biggest crowd or the most number of Internet trolls. In other instances, the Court has allowed or upheld actions that were not expressly prohibited by statutes when it determined that these acts were not contrary to morals, customs, and public order, or that upholding the same would lead to a more equitable solution to the controversy. However, it is the law itself - Articles 1306 and 1409(1) of the Civil Code - which prescribes that acts not contrary to morals, good customs, public order, or public policy are allowed if also not contrary to law.” (Subsequent emphasis supplied).

In the same treatise abovementioned, Pareja commented that pursuant to the Constitution (now Section 16[3] of Article VI) the Rules of the House “constitute the real laws of the House.” (p.469). And the “laws of the House” do not expressly or impliedly prohibit the participation of a House member in a committee of which he is not a member.

Verily, continuing and respecting the unbroken tradition of affording non-members of the Committee on Justice to participate in the impeachment proceedings does not only uphold an inherent right of a Representative but is a protection of the minority against the importuning of the supermajority in the House.

Thank you and best regards.

Very truly yours,

 

EDCEL C. LAGMAN

 

c.c:

 

HON. RODOLFO C. FARIÑAS
Majority Leader