Saturday, November 9, 2013


Napoles in the Senate Hearing
What came out of it?  To answer the question we must first consider what legislative investigations are for. 
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.  The Napoles Senate hearing was “in aid of legislation.”  The requirement that an investigation be in aid of legislation is one of the protections available to those who are called to testify.
Sometimes a legislative hearing might invite objections when it tends to be more in aid of prosecution and no longer in aid of legislation. Senator Guingona was careful to avoid this accusation.  He did ask questions which might be in aid of prosecution, but he was careful not to pursue them whenever Napoles said that the question was already being handled by a criminal body.
That legislative hearings be in aid of legislation is a requirement, however,  which is not difficult to satisfy because, unlike in the United States, where legislative power is shared by the United States Congress and the state legislatures, the totality of legislative power is possessed by the Congress and its legislative field is well-nigh unlimited.  "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded."   Congress can legislate practically about anything under the sun.  Moreover, to satisfy the requirement of “in aid of legislation” it is not necessary that every question propounded to a witness must be material to a proposed legislation.  "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation.  The reason is that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question."
On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase contributes very little towards protecting witnesses.  Practically any investigation can be in aid of the broad legislative power of Congress.  The limitation, therefore, cannot effectively prevent what has been called "roving commissions" or what has ben referred to as exposure for the sake of exposure.
So, if the Napoles hearing was not in aid of prosecution, how helpful was it for legislation?  Senator Guingona assessed it to be a success.  I am afraid, however, that it really did not add anything significant to what we already know from the sworn testimony of the whistle blowers.  Nevertheless, although the testimony of the witnesses have already been made public, the solemnity of a legislative investigation  added something to the credibility of what the witnesses had already affirmed. I would add, however, that calling the husband of Janet Napoles to the hearing would not add anything more to what has already been testified to – unless we expect the husband to contradict what the wife has affirmed.
Some, of course, had expected that the hearing would be a public roasting of the public officials being linked with the Napoles scam.  But that was not the tone of the questions posed by senators.
What legislation then can come out of the hearing?  We should not judge the results of the hearing by their direct relation to any proposed legislation.  The general purpose of the hearing was to find various ways for preventing anything like the Napoles scam.  But the form and character of the action will be determined not by one legislative hearing but by the sum total of the information to be gathered by the Senate and by the House in their effort to respond to the big challenge posed by what has been revealed and to the public clamor for effective action against corruption in government.
There is also another challenge to Congress: how to protect the integrity of the legislative body.  Only Congress has power over its members.
Finally, from the President we expect more than just a vigorous defense of himself but especially firm action to correct wrongdoings that have been made public.
11 November 2013

Saturday, November 2, 2013


Let’s face the passport cancellation case
Joaquin G. Bernas, S.J.

If we examine the constitutional law on the freedom of movement of citizens today as it has evolved, we might be surprised to see that it has the same  protective effect as the law in 1919 which prevented Mayor Justo Lukban of Manila from deporting 180 prostitutes to Davao in order preserve the moral standards of Manila.
This was before the 1935 Constitution and we were still living under the Organic Act given to  us the by Unted states Congress. It was our initial Bill of Rights.
Commenting on the law given to us by the US, Justice Douglas, in Aptheker v. Secretary of State,  said:  "Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interest of security . . . .  That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes."  
Hold departure orders and cancellation of passports is of a piece with this draconian practice.
Freedom of movement in Philippine Constitution has evolved through the 1935, 1973, and 1987 constitutions. What is the current constitutional law on the subject?
 The Manila  prostitutes in 1919 were being sought to be  exiled under a provision which simply said: "The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired."  The teaching then was that no one could be compelled to change his or her home except in accordance with what the law prescribed.  Thus, when the Mayor of Manila sought to cleanse the city of prostitutes by sending them to Davao, the Supreme Court stopped him.  The Court then said: "If [the City Mayor and Chief Police can take to themselves such power, then any official can do the same . . .  And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen."
That was 1919.
The 1935 Constitution later provided: “The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired.”  Impairment of the liberty therefore was not discretionary with just anybody.  It must be within the limits prescribed by law, that is, the grounds for the limitation must be found in law and the proper officer must be designated.
The 1973 Constitution altered the 1935 text to read: “The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health.” 
Under this provision even without a court order the liberty of abode and of travel could be impaired by an officer “in the interest of national security, public safety, or public health.”  The officer, although unnamed, is given the discretion to determine what will impair national security, public safety, or public health.
Drastic attempts by the government to control the travel of citizens during the period of martial law did reach the Court.  The curtailment took the form of denial of exit permits.  The Court had occasion to warn the Travel Processing Center not to treat the constitutional guarantee of the right to travel as an empty phrase in a pauper’s will.
The 1987 Constitution Commission, perceiving the weakness of the 1973 text strengthened the guarantee by splitting freedom of movement into two distinct sentences and treating them differently.  The liberty of abode is treated in a separate sentence.  It may be impaired only "upon lawful order of the court," and the court is to be guided by "the limits prescribed by law" on the liberty itself.  The clear intent was to proscribe practices like "hamletting"  during the martial law years.
As to liberty of travel, under the 1987 law, it could be impaired even without court order, but the appropriate executive officer is not armed with arbitrary discretion to impose limitations.  He or she can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law, " a phrase which was not in the less libertarian 1987 Constitution.
As can be seen, it was only under the 1973 Constitution that an officer, other than a judge, could have the discretion to determine whether national security, public safety, or public health is being impaired. For that reason, the 1987 Constitutional Commission added the phrase “as may be provided by law.”
But you may have noticed that, whenever the Secretary of Justice tries to justify her desire to cancel the passport of some senators and others, she cites the 1973 text which does not have the phrase “as may be provided by law.” 
Nevertheless the brave woman seems stymied by the Philippine Passport Law which lists the grounds  for cancellation of a passport: “1. When the holder is a fugitive from justice;  2. When the holder has been convicted of a criminal offense: Provided, That the passport may be restored after service of sentence; or 3. When the passport was acquired fraudulently or tampered with.”
4 November 2013

Saturday, October 19, 2013


Government Paralysis
When the Congress fails to pass the general appropriations act for the ensuing year, the effect on the general public can be alarming.  Paralysis of the US government was averted in the nick of time when the hold-out conservatives in Congress finally approved financial measures needed to keep the government going. 
The power exercised by the conservatives to hold the public hostage was a tool for forcing President Obama to submit to conservative wishes.  But the approval of the needed money was not a complete solution.  The solution is good only until January.  Meanwhile the battle goes on until a new budget is approved.
Is this something that can happen in the Philippines?  In the past, paralyzation of government was always a possibility.  Congress could always refuse money for the President to spend.  This, of course, was not true during the Marcos years.  Marcos, after all, was both executive and legislative during his years.  How about now?
We now have a first aid provision in the 1987 Constitution.  It says: “If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.”
As a matter of fact, however, our President has never been wanting for money to spend.  At this time, it has been quit obvious that the President is quite generous in making use of surpluses and even un-appropriated new money such as the Malampaya Fund.
Will there be a stop to this free use of public money?  The Supreme Court has finished listening to oral arguments on the constitutionality of the PDAF.  The tone of the oral arguments give the general impression that there may be a curtailment of the free flow of money.  Likewise cases have been filed and are mounting in the Supreme Court challenging the constitutionality of the DAP.  We should also be witnessing oral arguments in Court on the subject.
What will happen should the Supreme Court declare both PDAF and DAP unconstitutional?  Will this be the end of pork barrel?
It is not as simple as that.  Although the President himself has declared the death of pork barrel and the Palace advisers have intoned that the word of the President is equally powerful as God’s saying  “Let there be light!,” it will not be so.  We must remember that both PDAF and DAP are about public money and the Constitution clearly says that no money shall be taken out of the public treasury except in virtue of an appropriation made by law.  This means that Congress is the real master of the purse.  The President can exercise his veto power but Congress can override his veto.
It has been made clear by the pork barrel controversy that we have a lot of money.  It has also been made equally clear that the money has not been going to where it should go.  This is the difficult challenge not just to the congressional process but also to the executive process.  Principal agents in this delicate process aside from the President are the Secretary of Justice, the Budget Secretary, the Commission on Audit, and the Ombudsman among others.
Much is being expected by many from the anticipated appearance of Janet Napoles before the Senate investigation body.  This will be another topic of controversy.  We have to remember that, although Congress has the power to compel the attendance of witnesses, the Constitution also says “The rights of persons appearing in or affected by such inquiries shall be respected.”
In the celebrated ZTE case, the effort of the Senate to expose the truth was was foiled by Neri’s appeal to executive privilege.  There will be no occasion, to the best of my knowledge, for appeal to such privilege in the current case.  But standing tall is the right against self-incrimination of any person.
There are two distinct rights against self-incrimination: the right of an accused and the right of the witness who is not an accused.  An accused has the right to refuse even to take the witness stand; a witness who is not an accused may simply refuse to answer an incriminating question. 
I am not sure what the situation of Janet Napoles is.  Will she be appearing as a simple witness or as an accused?  As I recall she is already charged in court with offenses related to the pork barrel.  Can she claim the right of an accused or at least to due process on the ground that whatever she says now can affect the criminal case against her?  If she does appear but refuses to answer incriminating questions, can she be made to suffer the fate of Arnault in the Tambobong case.  But as I recall the case of Arnault was not an appeal to the right against self-incrimination.
The pork barrel controversy will be a long drawn out case and, as is usually said of novel cases, the Supreme Court can “enrich”jurisprudence.
21 October 2013

Saturday, September 28, 2013


Pork Barrel Investigations
Joaquin G. Bernas, S.J.
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 Neri maintained silence, the Senate left it at that.  Now it is about the pork barrel scam.  It started with the issue 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 investigation 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 Chairman of the Blue Ribbon Committee?  This issue arose on the opening day of the pork barrel investigation.  The answer depends on what the published rules of the Senate says.  I would give the same answer to the question whether the Senate as a body may bar the summoning of a witness.  The houses of Congress are free to formulate their rules of conduct and these rules must be published before they can affect outsiders.  But it would be good to know why Napoles is being protected.
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 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 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 yheld 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.
30 September2013

Saturday, August 31, 2013


To Abolish or to Restructure?
In my column last week I cited the 1994 decision upholding the constitutionality of pork barrel. The argument that had been used against the Fund was that, although appropriating money was the function of Congress, spending it was the prerogative of the executive department and Congress should not interfere with spending.  The Court ruled in favor of the Fund saying that, as the law stood, what the law allowed congressmen to do was simply to recommend projects.  If the recommended projects qualified for funding under the CDF, it was the President who would implement them.
Prior to the approval of the 1994 General Appropriations Act, pork barrel, which had been recognized by the 1935 Constitution as a legitimate institution, had not received much attention.  In the years from 1972 to 1986, there was no talk about pork barrel.  But those were unusual years because, for all practical purposes, President Marcos controlled the national treasury, both pork and beef.  After the restoration of democratic processes and during the years from 1986 to 1993, pork barrel was not a hot subject of debate.  It was only after the approval of 1994 General Appropriations Act that pork barrel became a frequent front page subject for debate.
One reason for this, of course, was that the amount involved had grown. In 1994 the total amount involved was 2.9 billion pesos.  By 2013, the total amount appropriated had ballooned to 24.7 billion.  But when we were discussing pork barrel in class in 1996, one of my students who had been studying the phenomenon, said to me that the amount alone could not be the reason for the heated dispute over the pork barrel.  After all, the amount involved was only a small fraction of the total budget.  He put the blame, you might find it strange, on the 1994 decision of the Supreme Court.  But I think, more appropriately, the blame could be put on the 1994 Congress.  How so?
My 1996 student pointed out to me that earlier pork barrel laws specifically stated that the money could be released only with the approval of the President, and that the Budget Secretary should promulgate rules and regulations for pork barrel funds.  Such requirements were removed by the GAA for FY 1994, R.A. 7663.  R.A. 7663 instead simply said: “The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned.”
Who are these “officials concerned”?  They are Senators, Representatives and the Vice President.  There is nothing in the 1994 law about prior approval by the President.  The further implication seems to be that, if no list was submitted by the “officials concerned,” the President could not use the fund for other necessary projects.  In effect, R.A. 7663 gave to the members of Congress control over the release of approved funds.
I have not checked whether or how long this provision of R.A. 7663 survived in subsequent General Appropriation Acts.  I have been able to check only the provisions of the GAA for FY 2013 and I did not see a copy of the 1994 provision.  However, I did see a provision which indicates that there still is a continuing role for members of Congress in the actual implementation of the fund.  The allowable extent is not clear.  But if we may judge from continuing media reports on how, for instance, the indigents in hospitals can receive funds through legislators, the role of legislators is still extensive – extensive enough for them to be able to use their clout for reelection purposes.
The important question now is: What will the President do about it?  How will he respond to the rally of last week?  The Budget Secretary says that the 2014 Budget is already set.  I do not know whether this means that what happened under the 2013 GAA can still happen now.
The Inter-Agency Anti-Graft Coordinating Council manned, or “womanned”, by what Scripture might call mulieres fortes, is encouraging.  But its focus is on the investigation of the misuse of PDAF, the prosecution of legislators and others who have misused it, and the recovery of assets that have been wrongfully taken.  Responsibility for making these a success belongs to the executive department. How much success will the executive achieve?
Preventing past abuses from happening again cannot be achieved by the executive department alone.  We have to remember that PDAF is about the disposition of money of the public.  And the constitutional guardian of the public treasury is Congress.  Although the year’s budget is prepared by the executive department, it is not only much influenced by the input of members of Congress but it is also ultimately dependent on what Congress approves.  True, the President can veto items in what Congress produces.  But the President can do nothing if Congress overrides his veto.
What all this means is that what will happen to the pork barrel will test the President’s leadership – his biggest test, perhaps.
2 September 2013