Pork barrel investigations and PH Constitution, Art 6 - Sections 21 & 22

Every once in a while there is an encounter between Congress and the executive during legislative investigations. Not too long ago it was about the ZTE controversy. The dispute was about whether a witness could be compelled to answer questions which he claimed to be covered by executive privilege. When then Neda director general Romulo Neri maintained silence, the Senate left it at that.
Now it is about the pork barrel scam. It started with the issue of whether some witnesses could be compelled to appear.

There are two provisions in the Constitution which provide for investigations. One deals with legislative investigations in aid of legislation, and the other deals with legislative investigations in aid of the “oversight function” of Congress.

Let me say something first about investigations in aid of the oversight function of Congress.
This function is dealt with in Section 22 of Article VI. The oversight function is intended to enable Congress to determine how laws it has passed are being implemented. In deference to separation of powers, however, and because department secretaries are alter egos of the president, they may not appear without the permission of the president. Department secretaries may appear on their own or upon the request of a congressional body but in either case only with the consent of the president.

The more commonly used provision is Section 21 which deals with investigations in aid of legislation. The power of legislative inquiry is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who might possess it.
Experience, however, has shown that mere requests for information are frequently unavailing and that information that is volunteered is not always accurate or complete. Hence, the power of Congress necessarily includes the power to punish a contumacious witness for contempt. No court can enjoin the appearance of a witness who has been summoned.

Can the Senate president prevent the summoning of a witness against the wishes of the chair of the blue ribbon committee? This issue arose on the opening day of the pork barrel investigation.  In my view, the answer depends on whether the published rules of the Senate allow the Senate president to do it. I would give the same answer to the question of whether the Senate as a body may bar the summoning of a witness by an investigation committee. The houses of Congress are free to formulate their rules of conduct and these rules must be published before they can affect outsiders. 

The requirement that the investigation be “in aid of legislation” is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy because, unlike in the United States, where legislative power is shared between the United States Congress and the state legislatures, the totality of legislative power is possessed by the Philippine Congress and its legislative field is well-nigh unlimited. It can therefore conduct an investigation on anything which can be the subject of legislation. Nevertheless the Court can protect a witness from being compelled to answer questions that are more in aid of prosecution rather than of legislation.

Who may be summoned to a legislative inquiry? Anybody may be summoned, but because of separation of powers, the president and justices of the Supreme Court may not be summoned. But the Constitution also provides that “the rights of persons appearing in or affected by such inquiries shall be respected.”
The most common defense of a witness being compelled to answer a question is the right against self-incrimination. A witness must take the witness stand when summoned. The time to raise the defense of self-incrimination is when the incriminating question is asked. Refusal to answer can be punished as contempt and the witness may be held in custody by the legislative committee until he answers the question. This is what happened to the witness Arnault in the Tambobong case.

A witness may also refuse to answer a question that asks for a matter covered by executive privilege. But only the president can claim executive privilege. Executive privilege is the right of the president to refuse the disclosure of certain types of information. Thus, a witness claiming executive privilege must show that he is acting on instruction of the president, as Neri did in the ZTE case.

Another basis for refusing to answer a question may be a matter of fairness. For instance, if the case is already being tried criminally, answers in the legislative investigation might prejudice a party in a criminal case.
The investigation of the pork barrel scam has just started. I anticipate that it will be a long process and that it will be interrupted by disputes about the manner of conducting the investigation.

source:  Philippine Daily Inquirer of Fr. Joaquin G. Bernas S. J.

Sandiganbayan can suspend lawmakers

As the “pork scam” scandal gets hotter by the day, calls to suspend accused lawmakers are likewise escalating. So far, these seem to fall on deaf ears. Senate President Franklin Drilon is not budging. We have yet to hear of any plan to convene the Ethics Committee.

I personally do not believe that the Senate will suspend members without the court handing down a guilty verdict against accused senators. And to be fair, the plunder complaints against Senators Juan Ponce Enrile, Jinggoy Estrada, and Bong Revilla are still in the preliminary investigation (PI) stage, technically, these are not yet court cases. The Ombudsman still has to determine if there is probable cause to file the information for plunder in court.

However, the questions of whether lawmakers can be suspended and by whom need answers. Citizens are told that only Congress may suspend its members. Thus, if Congress does not act, no other office can.
Senator Miriam Defensor-Santiago has repeatedly said that senators accused of plunder or graft should be suspended. She fully knows whereof she speaks.

In May 1991, Defensor-Santiago was accused by the Office of the Special Prosecutor (OSP) and the Ombudsman for alleged violation of Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act. The case stemmed from complaints filed against her by some employees of the Commission on Immigration and Deportation (CID) where she was then Commissioner.

Defensor-Santiago was already a Senator by the time the Sandiganbayan’s First Division acquitted her from all charges in December 1999.

It was a long-drawn legal battle that reached the Supreme Court.

In 1995, the prosecution filed a motion with the Sandiganbayan to issue a suspension order against the senator. This was granted in January 1996 when the Sandiganbayan resolved:

“WHEREFORE for all the foregoing, the Court hereby grants the motion under consideration and hereby suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the Philippines and from any other government position she may be holding at present or hereafter. Her suspension shall be for ninety (90) days only and shall take effect immediately upon notice.”
Defensor-Santiago went to the SC to oppose the suspension order and in April 2001 (or about one and a half years after her acquittal), the High Court made its ruling. G.R. No. 128055 is quite interesting, informative, and relevant in the light of the ongoing “pork scam” scandal.

In this decision, the SC answered important questions we grapple with on the matter of suspending lawmakers.

Can the Sandiganbayan suspend lawmakers?

The SC answered yes. The High Court said, “The authority of the Sandiganbayan to order the PREVENTIVE suspension of an incumbent public official charged with violation of… RA 3019 has both legal and jurisprudential support.” (Emphasis supplied)

The magistrates quoted Section 13. Suspension and loss of benefits of the anti-graft law which provides:

“Any incumbent public officer against whom any criminal prosecution under a VALID INFORMATION under this Act … or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, SHALL BE SUSPENDED FROM OFFICE…” (Emphases supplied).

A few important things need noting here.
1. Indeed, the Sandiganbayan has the power to suspend accused public officials once the case is already in court. This means that the preliminary investigation is finished and probable cause is established. Since the present plunder complaints against Enrile, Estrada, and Revilla are still undergoing PI with the Ombudsman, they cannot YET be suspended.

2. It is the Sandiganbayan’s RESPONSIBILITY to suspend these senators if probable cause is established. The law’s provision is very clear, the Sandiganbayan cannot exercise any prerogative. It MUST suspend without any need for anyone to request it.

The SC said, “It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be “no ifs and buts” about it”.

The SC cannot be any clearer about this.

3. The kind of suspension that the Sandiganbayan can order is PREVENTIVE in nature. The SC explained, “xxx. It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension.”

This means that the preventive suspension is neither a guilty verdict nor punitive in character. In succeeding similar cases, the SC further explained that the purposes of preventive suspension are to prevent tampering of evidence and influencing witnesses.

Perhaps, the court thinks that these may be easier done if the accused continues to hold office.
Are lawmakers excluded from Section 13 of the anti-graft law?

This is an important question because of statements that ONLY Congress has the power to suspend its members meaning, senators can only be suspended by the Senate, and representatives, by the House of Representatives.

The SC distinguished preventive suspension that can be ordered by the Sandiganbayan from suspension by Congress. The High Court said, “The order of suspension as prescribed by RA 3019 is DISTINCT from the power of Congress to discipline its own ranks under the Constitution which provides that each —
“xxx. 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…”

The Justices continued,  “The suspension contemplated in the Constitutional provision is a PUNITIVE measure that is imposed upon determination by the Senate or the House of Representatives upon an erring member.” (Emphases supplied)

Thus, the differences between the two types of suspensions are clear.

Preventive suspension does not establish guilt and such guilty verdict is not necessary before this kind of suspension is ordered. The only conditions are that PI has already established probable cause and the valid information has been filed with the Sandiganbayan. Moreover, the court, SHOULD suspend as a matter of duty.

Suspension by Congress on the other hand, may only be resorted to when wrongdoing by a member is already established, AND only with a 2/3 vote of the concerned House favoring the disciplinary action.
The SC concluded that, “RA 3019 does not exclude from its coverage the members of Congress…”

When the SC decided on Sen. Miriam Defensor-Santiago’s petition, it rightfully noted that the senator has already been acquitted. Still, with wisdom, the Justices said, “the Court, nevertheless deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner…”

“Significant” is an understatement. The ongoing “pork scam” investigation is most important to the Filipino people at this juncture. This SC decision must instruct everyone, the public especially, on the matter if suspending lawmakers who maybe parties to plunder and graft and corruption.

Yes, the Sandiganbayan MUST suspend Enrile, Estrada, Revilla, and all other public officials, elected or appointed, accused of plunder or graft, IF probable cause is established.

source:  Manila Standard Column of Elizabeth Angsioco

Suspension of legislators

Of PDAF and other matters

The rule on the discipline of members of Congress is found in Article VI, Section 16(3): “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.”

Inherent in any legislative body is its power of internal regulation and discipline. As Justice Joseph Story said, “If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority.”

What stands out from the jurisprudence on the subject is that, except for some limitations of detail found in the Constitution itself, there is a clear recognition of the overall autonomy of the legislative body both in the formulation and in the application of its rules. 

On the question whether a legislator’s action constitutes disorderly behavior, jurisprudence says “that the House is the judge of what constitutes disorderly behavior… The theory of separation of powers, fastidiously observed by this Court, demands in such situation a prudent refusal to interfere.”

On the question of whether a legislator under investigation should voluntarily go on leave, that is for the individual legislator to decide. We should also keep in mind that, like every person, legislators have the constitutional right to be presumed innocent until guilt is proven.

source:  Philippine Daily Inquirer's Column of Fr Joaquin Bernas SJ

Consitutionality of PDAF

Of PDAF and other matters

In 1994, the constitutionality of the pork barrel fund was challenged on the ground of violation of the rule that, although appropriating money is the function of Congress, spending it is the prerogative of the executive branch. The Supreme Court ruled in favor of the fund. It said that what the law allowed members of Congress to do was simply to recommend projects. If the recommended projects qualified for funding under the Countrywide Development Fund, it was the president who would implement them.

The latest Priority Development Assistance Fund is found under the 2013 General Appropriations Act. Its constitutionality is now also being challenged. What defect in the PDAF Law makes it unconstitutional?
The law specifies the total amount to be appropriated, identifies the implementing agencies, specifies the individual amounts that can be identified by legislators (P70 million for representatives, P200 million for senators), and identifies the potential recipients. If realignment is needed, the rules for realignment are set in the law pursuant to a constitutional requirement for transfer of funds. A request for release of funds  must be supported by required documents and endorsed by the committee on finance of the House or the Senate. The release is made by the identified agencies. The Department of Budget and Management and the respective agencies are responsible for posting the identity of the proponent legislators, the name of the projects, the names of the beneficiaries, the program evaluation and the assessment report, the authorized realignment if any, and procurements made under the fund.

Obviously, something went wrong. What went wrong and whose fault was it? We will be waiting for what the Supreme Court will say.

 

source:  Philippine Daily Inquirer's Column of Fr Joaquin Bernas SJ

Zamboanga Problem and the Power of the President to Declare State of Emergency

In the face of the fighting in Zamboanga City, some people have wondered why the President did not declare a state of emergency. The simple answer is that we are no longer under martial law or the 1973 Constitution, which provided for this extraordinary power of the president: “Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instruction, which shall form part of the law of the land.”

Now it is Congress that has the power to declare a state of emergency: “In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.” Congress has not declared a state of emergency.

It is not, however, as if the President were powerless to deal with emergencies. As Commander in Chief of the Armed Forces, the President, in case of rebellion, when public safety requires it, can declare martial law or call on the Armed Forces to suppress lawless violence or rebellion. President Aquino had greater reason than President Arroyo had when she declared martial law in Maguindanao. There clearly was rebellion in Zamboanga City. Martial law could have given him all the emergency powers he might need. But instead he simply exercised his power to call out the Armed Forces to help the police suppress rebellion in Zamboanga; and it seems to be working, even if he did not have to stay in the city!

source:  Philippine Daily Inquirer's Column of Fr Joaquin Bernas SJ

No to the US Rotational Accord

The Department of Foreign Affairs is currently negotiating with the United States a so-called “Rotational Framework Agreement”. Under this proposed treaty, US forces would be allowed access and use of military bases in the Philippines as part of its defense policy that shifted 80 percent of its naval power to  Asia and the Pacific.

The fact that the DFA is negotiating this agreement clearly indicates that what is contemplated goes beyond American forces  “visiting” the country, which is already governed by the Visiting Forces Agreement. In fact, a treaty is necessary if the Americans were to station their troops in the country for any other reason other than to “visit”. Under the 1987 Constitution, foreign troops, bases, and facilities shall not be allowed in our territory unless it is through a treaty duly recognized as such. This provision is a clear manifestation of our disdain for the presence of foreign troops in our country for good reasons. First, because of our bitter experience in history where the United States imposed on us an unjust treaty as a pre-condition to our independence that allowed it to maintain its largest naval and air bases abroad here long after our independence, or until 1991 when the Jovy Salonga’s Senate kicked them out; and two, because the presence of these troops in our territory is contrary to our national interests for various reasons. To begin with, the presence of foreign troops and facilities offends our national sovereignty and jurisdiction. Under international law, the principle of equality of states dictates that states should be supreme within the confines of their national territory. Foreign bases, troops and facilities are almost always immune from domestic jurisdiction. Their presence hence is always anathema to national independence.

More importantly, the presence of foreign troops in our country will, under the laws and customs of warfare, make us a party to any conflict that the Americans are party to even without our consent. This is because the presence of American troops in our military bases and facilities renders our facilities valid objects of military attack on the part of her enemies. Our consent to for them to use any of all our bases is in effect, our tacit approval to follow the United States to war, even if it is not to our national interest to be engaged in such a conflict.

There too is the social cost of allowing sex-starved GI Joes in Subic and Clark. We know from our recent history that troops that have spent substantial time at sea have problems controlling their libido to the detriment of our women and children. Despite the fact that rape is a non-service related offense, we have learned from Lance Corporal Daniel Smith and the others that allowing US forces in our territory is tantamount to a grant of impunity for these servicemen to sexually abuse our women and children.
American lackeys in our government justify this Rotational Agreement as a valid means of promoting our national defense policy especially now that we have territorial disputes with the regional giant, China. This people are deaf and blind to reality.  The truth is the Americans will station their troops here not to protect us, but only to advance its national interest. Currently, that interest is only to safeguard the freedom of navigation in the West Philippine Sea. The Americans since 1933, when France first laid claim to the Spratlys, have never recognized the Philippine title to the Spratlys and Scarborough. Forget too the possibility of Uncle Sam coming to our rescue in case of a shooting war with China over these disputed islands. They have repeatedly said that if such shooting should happen, they do not consider  such as being covered by our Mutual Defense Pact with them.

The bottom line is that the Americans have long abandoned the establishment of permanent military bases abroad as being too expensive and as being obsolete. Given its current financial difficulties, the US now prefers to operate from military bases in countries that it can dupe. Even if we appear to have common interests currently against China, let’s not deceive ourselves that we are high up on their priorities in Asia.  In fact, while they have never recognized our title to the disputed islands in the West Philippine Sea, they have repeatedly promised to come to the aid and assistance of their most important ally in Asia, Japan. If only for this, we should allow Japan alone to have the burden of hosting American troops and facilities.
We study history so that we can learn from it. Let’s hope that we have learned our lesson from history. Foreign troops and facilities cannot promote the Filipino interests. Only the Filipinos can. While there is a need to increase our capability to defend ourselves, we should do so using the billions of funds which have been misappropriated by Janet Napoles and her cohorts in Congress and the Presidency as pork barrel. Already, the P23.6-billion in Malampaya funds which COA suspects have been misappropriated as pork can buy no less than 40 warships similar to the BRP Del Pilar. This will promote our defense capability, and not our mendicancy and dependence on Uncle Sam.

source:  Manila Standard by Atty. Harry Roque Jr.