Term of Office and Privileges

Term of Office of Senators
Privileges of Senators
       Parliamentary Immunities
              Privilege from Arrest
              Privilege of Speech and Debate
                     Bases of the Privilege
                     Purpose of the Privilege
                     Precedents and Practices
                     Scope of Privilege Speech
       Suspension and Disqualification
              Manner of Imposing Discipline
              Inhibitions and Disqualifications
              Conflict of Interests
              Incompatible and Forbidden Offices

Term of Office of Senators

The term of the members of the Senate is expressly provided in Articles VI and XVIII respectively of the Constitution:

Sec. 4. 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.

Sec. 2. The Senators, members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

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.

It must be remembered that the 24 Senators first elected under the 1987 Constitution on May 2, 1987 served only for five years ending on June 30, 1992. Of the senators elected in 1992, the first 12 obtaining the highest number of votes served for the full term of six years expiring in 1998, and the last 12 served only three years and ended in 1995. After which, the 12 Senators elected in 1995 shall serve the full term of six years or until year 2001. Those 12 to be elected in 1998 shall also serve the full term of six years. In fine, beginning 1992, 12 Senators shall be elected every three years, so that unlike in the House of Representatives, the Senate shall not at anytime be completely dissolved. One-half of the membership is retained as the other half is replaced or reelected every three years.

The purpose of the continuity of the life of the Senate is intended to encourage the maintenance of Senate policies as well as guarantee that there will be experienced members who can help and train newcomers in the discharge of their duties. In addition, in case of resignation, death, permanent disability, removal from office, or resignation of the President and Vice-President, the Senate President shall act as President.

Moreover, the Constitution, in Section 4, Article VI, provides limits to the extent a member of the Senate can run for reelection. It provides as follows:

No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an inter-ruption in the continuity of his service for the full term for which he was elected.

back to top

Privileges of Senators


The salaries of members of the Senate is governed by Article VI of the Constitution as follows:

Sec. 10. The salaries of Senators and Members of the House of Representatives shall be determined by law. No increase in said compensation shall take effect until after the expiration of the full term of all the members of the Senate and the House of Representatives approving such increase.

Sec. 20. The records and books of accounts of Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.

It must be noted that in accordance with the above provisions, there is no prohibition against the receipt of allowances by the members of Congress. The second section, on the other hand, seeks to avoid the recurrence of the abuses committed by the members of the Old Congress in allotting themselves fabulous allowances the amount of which they refused to divulge to the people. It is now provided under the Constitution that the books of accounts of Congress shall be open to public inspection and must be audited by the Commission on Audit. Moreover, every member of Congress’ itemized expenditures, including allowances, shall be published annually for the information of the people.

It is interesting to note that the Constitution in Section 17, Article XVIII, provides the corresponding salaries of Senators, to wit:

Until the Congress provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the Vice-President, the President of the Senate, the Speaker of the House of Representatives, and the Chief Justice of the Supreme Court, two hundred forty thousand pesos each; the Senators, the members of the House of Representatives, the Associate Justices of the Supreme Court, and the Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and the Members of the Constitutional Commissions, one hundred eighty thousand pesos each.

However, under Joint Resolution No. 1, the salaries of the members of the Senate is increased to salary grade 33 with monthly equivalent rate of P35,000.00. The Senate President, on the other hand, is raised to salary grade 34 with a monthly basic salary of P40,000.00.

back to top

Parliamentary Immunities

A. Privilege from Arrest

One of the privileges that a member of Congress enjoys is the privilege from arrest. In this regard, Section 11, Article VI, of the Constitution provides as follows:

A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof.

This privilege is intended to insure representation of the constituents by the members of Congress. In Vera vs. Avelino, the Supreme Court, quoting a decision of the United States Supreme Court, explained for whose benefit the right to parliamentary immunity is secured:

These privileges are thus secured not with the intention of protecting the members against prosecutors for their own benefit, but to support the rights of the people, by enabling their representatives to execute the function of their office without fear of prosecution, civil or criminal.

A member of Congress could only be suspended by the House of which he is a member and only for the purpose of self-preservation or self-protection. To protect a member of Congress from oppression, even this power has been circumscribed by the 1935 Constitution and further limited by the 1987 Constitution.

The rationale for this was expressed by the Supreme Court as early as 11 September 1924 in Alejandrino vs. Quezon:

It is noteworthy that the Congress of the United States shall not in all its long history suspend a member. And the reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of the House without depriving the constituency of representation; expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an opportunity to elect anew; but suspension deprives the electoral district of representation without that district being afforded any means by which to fill the vacancy. By suspension, the seat remains filled, but the occupant is silenced.

back to top

B. Privilege of Speech and Debate

1. Bases of the Privilege

1.1. Constitutional Basis

Privilege speech is a parliamentary privilege enjoyed by a Member of Congress provided for in Section 11, Article VI of the Constitution. It states as follows:

Sec. 11. A Senator or Member of the House of Representatives shall, in all offenses be punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof.

1.2 Rules of the Senate

This is contained in Section 110, Rule XL, Rules of the Senate, which provides as follows:

Sec. 110. After the consideration of the matters contained in the Calendar for Special Orders, a Senator may forthwith request for and avail of the privilege to speak for one (1) hour on any matter of public interest.

If more than one (1) Senator wish to avail of the same privilege, the Senator who first announced his intention shall be given priority.

The period of time allowed in this section may, upon motion of the Senator on the floor be extended for such time as may be necessary for him to finish his speech unless a majority of all the Senators vote against such extension.

back to top

2. Purpose of the Privilege

Members of Congress cannot be prosecuted for any words spoken in debate or in connection with voting or used in written reports or with things generally done in a session of either House in relation to the business before it. This protection is extended to them during the session on the occasion of the exercise of their functions either in their respective chambers or in joint assembly, or in committees or commission. The purpose of this privilege of speech or debate is not to protect the members against prosecutions for their own benefit but to enable them as representatives of the people to execute the functions of their office without fear of prosecution, civil or criminal. As held in the case of Osmeña v. Pendatun, the Supreme Court took the occasion of defining the purpose of the privilege. It ruled:

Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose is to enable and encourage a representative of the public to discharge his public trust with firmness and success for it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however, powerful, to whom the exercise of that liberty may occasion. Such immunity has come to this country from the practices of Parliament as construed and applied by the Congress of the United States. Its extent and application remain no longer in doubt insofar as related to the question before us. It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional hall. But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming to a member thereof.

back to top

3. Precedents and Practices

The following are some of the precedents and practices observed in the previous sessions of Congress concerning the privilege speech:

3.1. When It Can and When It Cannot

It has been ruled that the privilege granted under this section cannot be availed of when the House has already proceeded to transact its business, such as the consideration of bills. But in a certain case, when the House was already considering unfinished business or business for the day, a member was permitted, through a motion unanimously approved, to deliver a short speech on an important case in his province. A member availing himself of such a privilege was entitled to one full hour. Having the floor on the privilege hour, he could not be forced to yield to interpellations.

The one-hour privilege not having expired yet, a member, who requested only 10 minutes in order to deliver his speech, was allowed to use the rest of the hour. He could not be precluded from continuing with his speech until the one hour was consumed.

3.2. On Request for Reservation

On point of order whether preference be given to a member who requests a previous reservation over any member who stands up on the floor ahead of the former, it has been held that an unwritten rule, sanctioned by immemorial practice, establishes such a preference. A request for reservation to use the privilege hour on a future date made on the floor by a member is recorded in the Journal.

The time of a member automatically expires the moment he takes his seat and, consequently, he cannot answer questions unless an extension of his time is granted by unanimous consent. The one-hour privilege can be extended only by unanimous consent.

3.3. Decorum on Speech

A member, availing himself of the privilege hour, may refuse interpellations, but he may be advised by the Chair not to use any improper language. He should use a language in conformity with the decorum and dignity of the House.

The Chair entertained a motion to delete from the Record a portion of a member’s speech under the privilege hour as unparliamentary for being against the dignity and integrity of the members, and when submitted by the Chair to the House, the motion was approved.

When a member attacks the leadership of the House, he may be declared out of order and deprived further use of the privilege hour.

A member should, during the privilege hour, refrain from making personal allusions to any member. In availing himself of the privilege hour, a member may, under his own responsibility, speak against an absent fellow member. It is indecorous of the Senate during a privilege speech.

In the exercise of his one- hour privilege, a member can speak on any subject of national interest, and he may even criticize the President on the appointment of certain persons to the government. But delivering speeches attacking the Chief Executive constitutes disorderly conduct for which a member may be suspended or expelled from the House as a disciplinary action. The Chair sustained a point of order which asked for deletion from the Record, as unparliamentary, parts of the privilege speech attacking the Catholic religion.

3.4. Interpellation

A member having the floor to avail himself of the privilege hour may refuse to yield to interpellation or yield for information. He cannot be forced to yield to another so that, in turn, the latter can answer questions.

It is in order for a member interpellating to lay the premises of his question. He may interpellate in the manner he so desires and use any of the official languages even if different from that used by the member who has the floor.

A member on the floor using the remaining portion of the privilege hour may stop yielding to further interpellations.

The time consumed by interpellation is counted against a member who has the floor; that is the reason why he has the option to yield or not to questions.

3.5. Precedence and Interruption

The House sustained the Chair that after the reading of the order of business, the one-hour privilege has precedence over any other matters, such as question of privilege.

A member availing himself of the one-hour privilege may yield to further interpellation, but he cannot be interrupted except by a point of order. He cannot be deprived of the floor except with his consent, and he may deliver his speech in such manner as he pleases as long as he speaks with due decorum. The Chair did not entertain a motion referring a one-hour privilege speech to a committee on the ground that while a member is enjoying the privilege, he cannot be deprived of the floor except by a point of order.

3.6. Extension of Time

After a member has consumed the privilege hour, no extension of time for the privilege can be granted if there is an objection to the motion for such extension.

An objection to a motion for extension of the one-hour privilege is not debatable.

The one-hour privilege can no longer be extended when, after its delivery, the member using the privilege sits down, thereby forfeiting his right to continue. When a member sits down after the expiration of his one-hour privilege, his time can no longer be extended.

A member who has the privilege hour may yield a portion of it to another member. When a member ceded a portion of his one-hour privilege, such a portion could not, without his consent, be extended to more than the number of minutes agreed upon.
A member using the remaining portion of the privilege hour may refuse any interpellation in order to save the time left for him.

3.7. Reference Speech

The Chair entertained a motion to refer a privilege speech to a committee after it had been delivered on the floor.

3.8. Stricken Off the Record

On motion approved by the House, the whole speech including interpellations, was stricken off the record for being unparliamentary.

During the privilege hour, the Chair motu proprio ordered stricken off the record the word "dishonorable" uttered with reference to the members of the House by the member interpellating.

back to top

4. Relevance

4.1. No assured government by the people unless their representatives possess this privilege.

There could be no assured government by the people, unless their representatives had unquestioned possession of this privilege. Thus, only the House of Commons was concerned in its vindication, and only in its connection with that House could it be a matter of constitutional importance. The Lords, of course, possess the right equally with the Commons, and thus it is considered one of the common privileges of Parliament. But it seems never to have been an issue with the Lords. As Stubbs says, "he would have been a bold King indeed who had attempted to stop discussion in the House of Lords."

4.2. To protect independence and integrity of Congress and to reinforce separation of powers.

In U.S. vs. Johnson, Justice John Marshall Harlan said that the purpose of the speech or debate clause is prophylactic, that it was adopted by the Constitutional Convention (without discussion or opposition) because of the English experience with the intent to protect the independence and integrity of Congress and to reinforce the separation of powers by preventing an unfriendly executive and a hostile judiciary appointed by the executive from reaching a congressional activity for evidence of criminality.

4.3. Basis of corrective legislative measures.

In practice, many subjects of privilege speeches are the bases of consequent appropriate committee investigations of legislative bodies, and these may result to corrective measures being filed on the basis of such committee investigations. It appears to be co-extensive with the range of legislative power, like the range of legislative inquiry together with its limitations.

4.4. To voice out dissent, the essence of democracy.

It is the best outlet of the people and of the opposition to ventilate anomalies in govern-ment and misgovernment, to express their concerns and sentiments thru their representatives in legislative bodies. In short, to voice out dissent is the essence of democracy.

back to top

5. Scope of Privilege Speech:

Personal and Collective

A question of privilege consists of a question affecting the rights of the Senate collectively or of its members individually including its privileges, reputation, conduct, decorum, dignity and integrity of proceedings.

A Senator may rise to a question of personal privilege at any time, but he cannot interrupt or take another Senator from the floor for that purpose without the latter’s consent. However, the reading of the Journal cannot be interrupted by a question of personal privilege neither can a question of privilege be raised when there is no quorum or when the roll is being called.

Under this provision, a member of the Senate may raise a question of privilege by a statement or remark on the floor and if sustained by the Chair, the member is entitled to speak.

After the privilege speech of a Senator, another member was recognized on a question of personal privilege to clarify certain matters in which he participated and which was left out in the privilege speech of the former.

A member rose to speak on a question of personal privilege as his name was linked in a news item which was considered as a malicious publication.

Franking Privilege

Republic Act No. 69 remains a good law. It expressly grants members of Congress the transmission free of charge within the Philippines of mail matters. Sections 1 and 2 of this law provide as follows:

All mail matter of Senators and of members of the House of Representatives of the Philippines, addressed for delivery within the Philippines, shall be received, transmitted and delivered in the mails of the Philippines free of postage: Provided, That each such mail matter when addressed to persons or offices other than government officers or offices shall not exceed one hundred and twenty grams in weight.

The envelope or wrapper of such mail matter shall bear on the left upper corner the name and official designation of the official sending the mail matter, and the words "Senate of the Philippines," or "House of Representatives," as the case may be, and on the right upper corner the words "Penalty for private or unauthorized use to avoid payment of postage, P500.00."

back to top

Suspension and Disqualification

Manner of Imposing Discipline

Section 16(3), Article VI of the Constitution provides the manner in which members of the Senate may be disciplined, suspended or expelled. It provides as follows:

Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.

Rules of proceedings are needed for the orderly conduct of the sessions of Congress. Unless such rules violate fundamental or individual rights, they are within the exclusive discretion of each House to formulate and interpret and may not be judicially reversed.

Without the above provision, the authority to discipline its members can still be exercised by each House as an inherent power, with the concurrence of a majority vote, conformably to the general rule on the will of the majority. With this provision, the disciplinary power is not so much expressly conferred as limited because of the specific conditions laid down for its proper exercise.

Thus, the courts may annul any expulsion or suspension of a member that is not concurred in by at least two-thirds of the entire body or any suspension meted out by the legislature, even with the required two-thirds vote, as to any period in excess of the 60-day maximum duration. These are procedural matters and therefore justiciable.

But the interpretation of the phrase "disorderly behavior" is the prerogative of Congress and cannot as a rule be judicially reviewed. The matter comes in the category of a political question. Accordingly, the Supreme Court did not interfere when the legislature declared that the physical assault by one member against another, or the delivery of a derogatory speech which the member was unable to substantiate, constituted "disorderly behavior" and justified the adoption of disciplinary measures.

Other disciplinary measures besides expulsion and suspension are deletion of unparliamentary remarks from the record, fine, imprisonment and censure, sometimes called "soft impeachment."

back to top

Inhibitions and Disqualifications

The Constitution provides in Section 14, Article VI the grounds of inhibitions and disqualifications for members of Congress.

It provides as follows:

No Senator or member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.

Appearance of the legislator is now barred before all courts of justice, regardless of rank, composition, or jurisdiction. The disqualification also applies to the revived Electoral Tribunal and to all administrative bodies, like the Securities and Exchange Commission and the National Labor Relations Commission. Courts martial and military tribunals, being administrative agencies, are included.

The purpose of the disqualifications is to prevent the legislator from exerting undue influence, deliberately or not, upon the body where he is appearing. The pressure may not be intended; normally, the appearance is enough, considering the powers available to the legislator which he can exercise to reward or punish a judge deciding his case or, in the case of the Electoral Tribunal, his close association with its members. This is the reason the prohibited appearance must be personal. The lawyer-legislator may still engage in the practice of his profession except that when it comes to trials and hearings before the bodies above-mentioned, appearance may be made not by him but by other members of his law office.

In Puyat v. De Guzman, a legislator entered his appearance as counsel for one of the parties to an intracorporate dispute before the Securities and Exchange Commission. He desisted when his representation was challenged under the above-mentioned section. Thereafter, he purchased P200 worth of stocks in the corporation from the faction he was representing and sought to intervene in the said dispute, this time as a stockholder. The Supreme Court did not allow him to do so as his evident purpose was to circumvent the constitutional prohibition. Justice Melencio Herrera declared:

Under those facts and circumstances, we are constrained to hold that there has been an indirect appearance as counsel before xxx an administrative body’ and in our opinion, that is circumvention of the constitutional prohibition. The intervention was an afterthought to enable him to appear actively in the proceeding in some other capacity. To believe the avowed purpose, that is, to enable him eventually to vote and to be elected as Director in the event of an unfavorable outcome of the SEC case, would be pure naivete. He would still appear as counsel indirectly.

Legislators are prohibited from being financially interested in any contract with the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, or in any franchise or special privilege granted by any of these during their term of office, because of the influences they can easily exercise in obtaining these concessions. The idea is to prevent abuses from being committed by the members of Congress to the prejudice of the public welfare and particularly of legitimate contractors with the government who otherwise might be placed at a disadvantageous position vis-à-vis the legislator.

It should be noted, though, that not every transaction with the government is barred by this provision. The contracts referred to here are those involving "financial interest," that is, contracts from which the legislator expects to derive some profit at the expense of the government. An illustration is a contract for public works or the sale of office equipment or supplies to the government. By contrast, it cannot be said that the legislator will profit financially from a contract of carriage with a government instrumentality like the PAL since it is the carrier that will benefit from the passenger’s fare.

The last sentence restores an inhibition originally imposed by the 1935 Constitution. Although this provision has never been judicially interpreted, it may be surmised that the rule shall apply to the case, say, of the chairman of the committee on banks serving as legislative consultant for a private bank.

back to top

Conflict of Interests

The provisions in Section 12, Article VI of the Constitution are intended to ensure the probity and objectivity of the members of Congress.

There are some persons who may be tempted to run for Congress not because of a desire to serve the people but precisely for the protection or even enhancement of their own interests. By requiring them to make known at the outset their financial and business connections or investments, it is hoped that their potential for self-aggrandizement will be reduced and they will be prevented from using their official positions for ulterior purposes. In some countries, businessmen are required to unload their stockholdings as these might affect their official acts or at least lead to suspicion of chicanery or impropriety in the discharge of their duties in the government.

back to top

Incompatible and Forbidden Offices

Under Section 13, Article VI of the Constitution, it states some other disqualifications by which a member of Congress may hold office, to wit:

Sec. 13. No Senator or Member of the House of Representatives may hold any other office or employment in the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.

The first part of this section refers to what are known as incompatible offices, which may not be held by the legislator during his tenure in Congress. The purpose is to prevent him from owing loyalty to another branch of the government, to the detriment of the independence of the legislature and the doctrine of separation of powers.

The prohibition against the holding of an incompatible office is not absolute; what is not allowed is the simultaneous holding of that office and the seat in Congress. In the case of the rest of the legislators, any of them may hold another office or employment in the government provided he forfeits, as a result, his position in Congress.

Forfeiture of the legislator’s seat, or cessation of his tenure, shall be automatic upon the holding of the incompatible office. Thus, a congress-man who was elected provincial governor was deemed to have automatically forfeited his seat in the House of Representatives when he took his oath for the provincial office. No resolution was necessary to declare his legislative post vacant.

In Adaza v. Pacana, the petitioner and the respondent were elected governor and vice-governor, respectively, of Misamis Oriental. Both subsequently ran for the Batasang Pambansa, but only the petitioner won. Adaza then qualified as a member of the lawmaking body, whereupon Pacana assumed the governorship as statutory successor. Adaza challenged Pacana’s takeover, contending that under the parliamentary system a legislator could concurrently serve as governor; hence, there was no vacancy in the governorship that Pacana could fill. Through Justice Escolin, the Court unanimously rejected this argument and held that Adaza automatically forfeited the governorship the moment he took his oath as a member of the Batasang Pambansa.

The constitutional prohibition against a member of the Batasang Pambansa from holding any other office or employment in the government during his tenure is clear. Section 10, Article VIII of the 1973 Constitution provides as follows:

Sec. 10. A Member of the National Assembly shall not hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, during his tenure, except that of prime minister or member of the cabinet. xxx

The language used in the above-cited section is plain. The only exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom or expediency of the said provision is a matter which is not within the province of the Court to determine.

A public office is a public trust. It is created for the interest and the benefit of the people. As such, a holder thereof is subject to such regulations and conditions as the law may impose and he cannot complain of any restrictions which public policy may dictate on his holding of more than one office. It is therefore of no avail to petitioner that the system of government in other states allows a local elective official to act as an elected member of the parliament at the same time. The dictate of the people in whom legal sovereignty lies is explicit. It provides no exceptions save the two offices specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within the purely parliamentary system of government no incompatibility exists in the nature of the two offices under consideration, as incompatibility herein present is one created by no less than the Constitution itself. In the case at bar, there is no question that petitioner has taken his oath of office as an elected Mambabatas Pambansa and has been discharging his duties as such. In the light of the oft-mentioned constitutional provision, this fact operated to vacate his former post and he cannot now continue to occupy the same, nor attempt to discharge its functions.

But not every other office or employment is to be regarded as incompatible with the legislative position. For example, membership in the Electoral Tribunal is permitted by the Constitution itself. Moreover, if it can be shown that the second office is an extension of the legislative position or is in aid of legislative duties, the holding thereof will not result in the loss of the legislator’s seat in Congress.

Accordingly, the chairmen of the Senate and House committees on education retain their seats in Congress while sitting concurrently as ex-officio members in the U.P. Board of Regents. Legislators who serve as treaty negotiators under the President of the Philippines continue to sit in Congress, where they can better work for the approval of the treaty and the passage of the needed implementing legislation.

But even if a member of Congress is willing to forfeit his seat therein, he may not be appointed to any civil office in the government that has been created or the emoluments thereof have been increased while he was incumbent in the legislature. Such a position is a forbidden office.

The purpose is to prevent trafficking in public office. Were the rule otherwise, certain legislators, especially those not sure of reelection, might be able to work for the creation or improvement of lucrative positions and, in combination with the President, arrange for their appointment thereto in order to provide for their future security at the expense of the public service.

Notably, this provision does not apply to elective offices, which are filled by the voters themselves.

The appointment of a member of Congress to the forbidden office is not allowed only during the term for which he was elected, when such office was created or its emoluments were increased. After such term, and even if the legislator is reelected, the disqualification no longer applies and he may therefore be appointed to the office.

back to top