THE NAPOLES HEARINGS

Napoles in the Senate Hearing

Joaquin G. Bernas, S.J.

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