CHAPTER XII

THE COUNCIL OF STATE

104. Nature of a Council of State. The mere name of "Council of State" does not give any correct idea as to its nature and organization. A review of different councils established from the earliest time to the present will show us the diverse nature, functions, and influences that they have had.

England must have been the originator of government by council; for at no time in her history did the English king rule without the help of some council. Beginning with the "Witenagemot," which advised the early Teutonic kings, to the establishment of the modern cabinet, England has experimented with all sorts of councils differing in names and in power. Some of them exercised not only advisory functions, but even executive, legislative, and judicial powers. The present Council of State of France, once a powerful body, is now nothing but an administrative tribunal, the court of last resort in all administrative cases. In Denmark and the Netherlands, the Council of State corresponds to the cabinet, and in fact is the cabinet. In Switzerland, the Federal Council performs both executive and legislative duties, but, unlike the cabinets of England and the English colonies, is a non-partisan body. In Japan, the Privy Council is the highest constitutional adviser of the emperor. In Canada, the Privy Council, so-called, is the cabinet. In the other English self-governing colonies, "Privy Council" and "Cabinet" refer to the same thing.

In other words, councils of state have had as many and varied natures as there have been kinds of government. It is the cabinet in some countries, while in others it is a mere advisory body. The only distinguishing characteristic of councils of state is that they are all established for the discussion of great affairs of state.

The Council of State which has developed in the Philippines is, as we shall see, quite different from any of the above councils. It has not been an original creation, by any means; nor is it a servile imitation of foreign institutions. It is rather the result of peculiar circumstances and conditions. It is rather a recognition of established facts and conditions, called by what appears to be a high-sounding name. Its nearest approach in other countries is the cabinet itself or the executive council of self-governing English colonies; for it is nothing but the cabinet enlarged.

105. Need of a Common Counsel in the Philippines. We have discussed the intent and spirit of the Jones Law, which is to grant the Filipino people the largest amount of self-government compatible with American sovereignty, and to create a government in which the "counsel and experience" of the people will play the greater part. 1 Now, what are the instrumentalities by means of which the Filipinos as a people can exercise that power of self-government and can give their "counsel" in the government of their country?

1

Heretofore, when there was only one governmental organ responsible to the Filipinos, the Philippine Assembly, everybody looked to this organization as the faithful exponent of the ideals and aspirations of the Filipino people. It represented the national "counsel" of the people. Its Speaker was considered the most prominent Filipino official, for he ex1 See Section 78.

hibited the double representation of his district and of the entire Assembly. The Filipino people looked to the Speaker for the success or failure of any part they were taking in the government.

Under the Jones Law, two other factors or instrumentalities of government were given to the Filipinos; to the lower elective House was added an elective Senate, and the Philippine Legislature was given the power to reorganize the executive departments, with the exception of the Department of Public Instruction. This latter provision had been interpreted as meaning that henceforward all the heads of departments should be Filipinos, with the exception of the Secretary of Public Instruction. If the new autonomy meant anything, it was that these three organs of government, the lower House, the upper House, and the Filipino executive heads, should be responsible mainly to the Filipino people instead of to the President of the United States.

The fundamental defect of the Jones Law is the absence of responsible and undivided leadership in these three organs of government and the lack of one single body which can properly represent the "counsel" of the nation. When the people had only one mouthpiece, the Assembly, there was no divided leadership, for there can be no divided leadership in one organ and one body; but there easily can be in three organs. If the Governor-General was to comply with the spirit of the Jones Law, which is to follow the "counsel" of the people as long as it is not incompatible with the exercise of American sovereignty, a body of men must be created or designated who could properly represent the Filipino people as a whole, and who could act as his advisers.

106. Speaker Osmena's Refusal of the Secretaryship of the Interior. When the time came for filling the executive posts, the necessity was again felt for a unified and collective

leadership among the governmental organs granted the Filipinos. The experience of the two Houses, even before the reorganization of the executive departments, clearly showed the lack of such leadership. The leadership of the Speaker was not an open one, but secret and extra-legal, exercised in the party caucuses, not by virtue of his speakership, as before, but because he was the president of the party in power. He was no longer by virtue of his official position the most representative Filipino in the government, for the Senate President could also claim a similar representation of the people.

It was now also felt that the important executive positions should be filled by responsible leaders. A movement was therefore started to make the Secretaryship of the Interior the position of leadership of all the three organs of government granted to the Filipinos. In a caucus of the majority members of both Houses held on December 22, 1916, a resolution was passed urging Speaker Osmeña to leave the speakership and accept the Secretaryship of the Interior.

Speaker Osmeña, after mature deliberation, declined the position of Secretary of the Interior in a long memorandum submitted to the caucus of the majority members of the two Houses. He said that he was "entirely in accord with the principle of a united and responsible leadership,” but that under the present circumstances he feared that the leadership should not be in an executive department. He said that it was necessary that the organs of government should work as a united and organic whole, but the Secretaryship of the Interior might not answer the purpose of such leadership. There being no other member of the Legislature in the Cabinet but himself, he claimed that the position of the president of the party in the executive power would be anomalous.