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