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
