The other day, Rep. Rodrigo Duterte of Davao City reportedly submitted a letter of resignation to the Speaker of the House of Representatives, and simultaneously took a leave of absence pending action on his resignation.  It has reportedly sparked a legal debate on whether a Congress member is allowed by law to resign from office. The debate ensues from a lacuna or lack in the law.  Neither the Constitution, the Rules of the Senate, or the Rules of the House provides specifically for resignation of a Congress member.

 I respectfully submit that a member of Congress -- whether a senator or a representative -- has the legal right to resign from office.  Like all other rights, it finds protection in Article 3, the Bill of Rights, which provides:

  SECTION 1.  No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

 In legal shorthand, this provision consists of two clauses: the Due Process Clause, and the Equal Protection Clause.  So broad is the scope of these two clauses taken together, that some jurists have expressed the view that if you did away altogether with the Bill of Rights, and kept only these two clauses, in effect you would still have an entire Bill of Rights.  For all civil and political rights of citizens flow from the Due Process Clause and the Equal Protection Clause.

 The right of a person to resign from public office is part of the liberty protected by the Due Process Clause.  And since there is no question that a person in private office has the right to resign, then a person in public office should enjoy a similar right, for this is mandated by the Equal Protection Clause.  Further, since ours is a libertarian Constitution, if there is any doubt, it should be resolved in favor of the liberty of the individual.

 Not only should there be equal protection as between a public official and a private official; there should as well be equal protection as among executive, legislative, and judicial officials.  The Constitution (Article 7, Section 8) mentions and therefore implicitly allows the resignation of the  two highest executive officials.  It provides for certain contingencies, specifically including the “resignation of both the President and the Vice President.”* Thus, if the Constitution gives by implication to the President and the Vice President the right to resign, it implicitly gives to  Congress members a similar right to resign.  This is mandated by the Equal Protection Clause.

 There is one other provision in the Bill of Rights that argues in favor of the  right to resign.  It provides:

 Sec. 18.  No involuntary servitude in any form shall exist, except as a punishment for a crime whereof the party shall have been duly convicted.

 Involuntary servitude is defined as: “The condition of one who is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not.”  Although the Involuntary Servitude Clause in our Constitution was initially adopted from the US Constitution -- where it was the product of the American problem of slavery, --  nonetheless the Philippine Supreme Court has applied this Clause to the field of labor law, where it has been used to invalidate certain terms of employment in our country.

 Under the Senate Rules (Rule 50, Sec. 134), since there is no rule applicable to the specific case of resignation, we have  to resort to precedents, if any;  and as a supplement, to the rules contained in Jefferson’s Manual, Riddick’s Precedents and Practices, and Hind’s Precedents.

 Jefferson’s Manual (Rule 9, Sec. 662) recognizes the right to resign.  It provides:

 The privilege of the House, as distinguished from that of the individual Member, includes questions relating to its constitutional prerogatives in respect to various questions incidental to the right to a seat, such as a resolution declaring a vacancy in the House because a Member-elect is unable to take the oath of office and to serve as a Member or to expressly resign the office due to an incapacitating illness.

If Jefferson’s Manual does not speak of a right to resign in general, presumably it is only because nobody chose to exercise the right.

 Riddick’s Precedents expresses unqualified support for the right to resign.  It states (page 1013):

 The right of a senator to resign his seat is unquestionable, but the procedure thereon has varied in different times.  As a rule, resignations have been made by letters, setting forth the date of said resignations . . . ..   Today, it is the common practice for the Senator who is resigning to direct a letter not only to the President of the Senate, but also the governor of the state function that Senator was elected, specifying the date of his resignation.

 To Jefferson and to Riddick, who are expressly recognized by the Senate Rules as our institutional authorities, let me add Mechem, whose Treatise on the Law of Public Offices and Officers is accepted as a classic.  Mechem, like Riddick, supports the right to resign, but Mechem is more restrictive.  He states (Section 409):

 It may be said in a general way that a public officer has the right to resign his office at any time, and some authorities have declared this right in unqualified terms. The weight of authority, however, and the obvious dictates of public policy require that the right shall be declared in a much more restricted manner.

 The restrictions on the right to resign, according to American jurisprudence, include the rule that a public official can resign only with the consent of the appointing power.  This requirement is justified by the need to prevent inconvenience to public interest.  Thus, an American case held: “It is not true that an office is held at the will of either party.  It is held at the will of both.”

 The rule that the resignation becomes effective only upon acceptance of the proper authority is embodied in our Penal Code, which provides:

 ART. 238.  Abandonment of office or position.  Any public officer who, before the acceptance of his resignation, shall abandon his office to the detriment of the public service shall suffer the penalty of arresto  mayor.

 Thus, the Penal Code implicitly recognizes a right to resign.  It simply lays down the condition that the public officer should not abandon his office before his resignation is accepted.  In fact, from the phraseology of Art. 238, we can deduce that the public officer is even allowed to abandon his office, if there is no detriment to the public service.

 One more authority for the right to resign  is the US Manual of the House of Representatives.  The right is recognized by Sec. 19, on “Vacancy from resignation.”  The annotation states:
 It has been established that a Member or Senator may resign, appointing a future date for his resignation to take effect, and until the arrival of the date may participate in the proceedings . . . .

 Acceptance of the resignation of a Member of the   House is unnecessary, and the refusal of a Governor to accept a resignation cannot operate to continue membership in the House  . . . .

 A letter of resignation is presented as privileged.

 The only dissenting voice against the right to resign is found in Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament.  May states (page 49): “It is a settled principle of parliamentary law that a Member, after he is duly chosen, can not relinquish his seat.”  However, May deals with the British Parliament, and thus it could be argued that since we do not have a parliamentary system, his dictum does not apply.

 To whom should a Congress member tender his resignation?  The statutes are silent, but jurisprudence holds that the resignation should be tendered to the officer or body having authority to appoint his successor or to call an election to fill the office.

 R.A. No. 7166, also known as the Electoral Reforms Law of 1991, Section 4, para. (2) provides:

 In case a permanent vacancy shall occur in the Senate or House of Representatives at least one (1) year before the expiration of the term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy.  However, in case of such vacancy in the Senate, the special election shall be held simultaneously with the next succeeding regular election.

 Hence, since it is the Comelec which has power to call an election to fill a Congress vacancy, then the resignation should be filed with the Comelec.  Ex abunda cautela,  copies of the resignation should be furnished, as a courtesy, to the Senate President or House Speaker,  and the President of the Republic.

 In summary, I respectfully advance the thesis that a public officer, including a Congress member, has a right to resign.  There might be a moral obligation, but there is no legal obligation, to finish the term.  The Senator or Representative may resign, in the same way that he may retire at any time of his choosing.  In the words of American jurisprudence, “there is absolutely no reason to qualify or limit an officer’s right to relinquish public office, where adequate safeguards exist to protect the public.”  In criminal law, this safeguard consists of the requirement that the public officer should not abandon his office to the detriment of the public service, until his resignation is accepted.

 As a modest contribution to the ongoing debate on this topic in the House of Representatives, I move that this speech should be referred to the House Speaker, Rep. Rodrigo Duterte, the Comelec, the Senate President, and the President of the Republic.

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The Isulong Team: Isulong SEOPh, Isulong Seoph by Benj, Pinoy Isulong by Seoph Martinez and Useless Isulong