Trial by legislation

The following is my column today at the op-ed section of the Manila Standard Today. Unforgivable mistake: I do not know how I got the names mixed up. But it happened and I apologize profusely. The name of the blog reader that I quoted in this piece is Domingo T. Arong, not Rayon. My apologies to Mr. Arong. So sorry. I have made the necessary changes in this post. I will do an erratum in my column on Monday.

It is very ironic that for an institution that is under siege and desperately trying to earn points in the bar of public opinion, the Senate just shot itself in the foot last week with the way it conducted its hearing on the alleged “anomalous losses” of the Philippine Communications Satellite Corp. and the Philcomsat Holdings Corp. It was a classic lesson on how not to conduct public hearings. Put more bluntly, it was an arrant and brazen display of power.

It was very disconcerting to watch supposed paragons of virtue publicly humiliating a public official who was, in the first place, virtually dragged into the room kicking and screaming. That the subject of the senatorial ire was a 70-year-old head of a government commission suffering from hypertension made the senators look even more menacing and cruel. It is possible that he is guilty of incompetence or corruption, but that doesn’t strip him of his right to be treated with courtesy.

We all know that the showdown was actually a proxy confrontation between the legislative and the executive branches of government. It was long overdue, although despite my inherent cynicism even I was not prepared at the level of animosity present. Why, Senator Richard Gordon was not only shouting at the top of his voice and wagging a threatening finger, he was spewing all kinds of angry denunciations including a direct accusation that the hapless Presidential Commission on Good Government chair was lying about his medical condition! (I pray that the good senator is spared the tribulations of an erratic blood pressure especially since I know for a fact that many Filipinos are becoming hypertensive at a very young age. I am already hypertensive at 42.)

After watching the television newscast which featured embarrassing snippets of the shouting match, I posted a quick rant in my blog, decrying not only the utter lack of civility of the senators but also the Senate’s seeming abrogation of the power to judge. As I wrote in my blog, I have no love lost for the PCGG, which still has to show concrete results after almost a score’s worth of public spending. But the hearing was supposed to be an inquiry, not a court of justice. And for crying out loud, no one, especially a 70-year-old public servant, deserves that kind of public humiliation. Sadly, what most people will remember about that hearing is how an old man was bullied, not the purpose for which it was called. This is very tragic because it is about time the PCGG is actually made to account for its dreadful performance.

Domingo Arong, a regular reader of my blog, posted a lengthy riposte to my rant, which provides an important context to the whole imbroglio. He said that Sabio’s arrest and detention was eerily reminiscent of the McCarthy era in the United States and quoted Edward Murrow’s famous warning: “We must remember always that accusation is not proof, and that conviction depends upon evidence and due process of law.”

This reminder is very timely because if there is one thing that the Senate is becoming notorious for, it is precisely for upbraiding, accusing and castigating people, sometimes, ordinary citizens, during hearings or in media statements that the senators claim to do as part of their oversight role. “In aid of legislation” is a suitable justification for Senate hearings under conditions when legislation is actually being passed. But given the dismal record of the Senate as a legislative body—its sorry output last year was a handful of bills—this justification is difficult to swallow.
Arong asks uncomfortable questions: “Is the power to inquire the power to disregard the command in the Bill of Rights that no person shall be deprived of ‘liberty’ without due process of law?” “Does due process of law allow indefinite detention and warrantless arrests?” “Does the power to inquire include all the powers the Constitution already grants to the constitutional Office of the Ombudsman?”

He continued by noting that: “The US Congress, in fact, has ‘practically abandoned’ its practice of detaining a recalcitrant witness as noted in Watkins vs United States, 354 US 178 [1957] handed down at the height of the McCarthy-era paranoia.”

Considering that Philippine jurisprudence takes heavily after that of the United States, Arong notes that: “Since World War II, the [US] Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the house. The sanction there imposed is imprisonment by the house until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does not extend beyond adjournment. Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.”

This bit of wisdom is seemingly alien to our senators who had Sabio arrested under circumstances that were described as “overkill.” To date, Sabio is still under detention at the Senate where he is expected to languish until the Supreme Court decides on his fate.

My astute reader continued by pointing out that: “The US Supreme Court reiterated this view in Groppi vs Leslie, 404 US 496 [1972],” from which he quotes: “Legislatures are not constituted to conduct full-scale trials or quasi-judicial proceedings and we should not demand that they do so although they possess inherent power to protect their own processes and existence by way of contempt proceedings. The Congress of the United States, for example, no longer undertakes to exercise its contempt powers in all cases but elects to delegate that function to federal courts.”

Finally, Arong recommends that members of Congress read of Irving Brant’s landmark book The Bill of Rights, Its Origin and Meaning, in particular Chapter 37 of the book aptly entitled “Attainder by Congressional Committees.” He ends by appealing that: “To thwart any attempt in the future to transform congressional inquiry ‘in aid of legislation’ into ‘congressional attainder,’ our own Congress should be respectfully petitioned to let the separate, coequal court try, decide and punish after a ‘judicial’ [not ‘legislative’] inquiry has been concluded. This way, the rights of persons appearing in or affected by such legislative inquiries the Constitution commands Congress to respect are upheld [particularly the privilege against self-incrimination].”

The legal gobbledygook notwithstanding, the basic question is: Are the actions of our senators tenable and relevant today? I do not agree with many of the points of the ongoing people’s initiative, but I think the senators are digging the Senate’s own grave.


vic said…
First you have to find the wrongdoings, before you can legislate remedial laws. If the senators and all Elected Officials know the role they have to play in proper governance, there would have been no rampant corruptions happenings anyways, but ineffective inquiries, non-criminal investigation for Criminal offenses (corruptions and plunder are criminal offense under the Phil. Laws, aren’t they?), slap in the wrist punishments and even out of court settlement for crimes. Sometimes the complexity of the justice system over there baffled even the scholars of law, and just can’t figure it out, myself a layman how will it ever work.

Again I cite the Justice Gomery Inquiry. The biggest Corruption scandal to ever hit the Canadian political scene since the last time about a hundred years ago, was not resolved by any senate or parliamentary inquiry, but by Independent Judicial Inquiry headed by Justice Gomery. No shouting, no insulting, no dragging any witness or participant to the court or threat, but was so powerful that even PM Jean Chretien can not avoid appearing before it. In the end every details of the corruption was brought into the surface and every person involved take their lump and carry them for the rest of their useful lives. If any of these senators wants to learn how just Google search Justice Gomery and maybe they’ll learn something..
snglguy said…
Well what do you expect from these honorable(?)gentlemen when the next election is less than a year away?
domingo said…

OK lang.

Anyway, Mr. John Marzan ( got my name right in his 19 Sept “Disingenuous and Hypocritical” article on your “Trial by Legislation.”

Following is my “rejoinder” to John’s article that I posted in his Blog.

My comment to Bong Austero’s Blog was not about the merits of Camilo Sabio’s preposterous claim of “immunity”; rather, it was about the arrest and detention of a person the Senate summoned under its authority to “conduct inquiries in aid of legislation” provided in Sec. 21, Art. VI.

The similarity with the McCarthy committee hearings was the “pitiless publicity and exposure,” or the humiliation, that persons summoned were subjected to, since “such publicity,” in the words of Justice Black, “is clearly punishment, and the Constitution allows only one way in which people can be convicted and punished”--by the court “after a trial with all judicial safeguards.”

That the legislative power to inquire implies the authority to summon and to cite in contempt is conceded.

But the power to inquire and to cite in contempt must not be inflated to include the general authority to humiliate (or the “power of exposure”), to arrest and indefinitely detain.

For the last line in the same Sec. 21, Art. VI cited also provides that: “The rights of persons appearing in or affected by such inquiries shall be respected.”

So, it’s basically a clash between the delegated sovereign “power to inquire” and the retained sovereign “rights of persons appearing in or affected by such inquiries”; it’s also about the separation of the co-equal powers the sovereign delegated, particularly to the legislative and to the judiciary, fearful of “concentrated power.”

The U.S. Supreme Court cases I cited, Watkins v. U.S. (1957) and Groppi vs Leslie (1972), merely confirmed the prevailing rule in the U.S. Congress in dealing with persons cited in contempt during committee hearings, a rule which is precisely what Justice J. Tuason, dissenting in Arnault v. Nazareno (1950), earlier warned ought to be followed:

“The Congress is at full liberty, of course, to make any investigation for the purpose of aiding the fiscal or the courts, but this liberty does not carry with it the authority to imprison persons who refuse to testify.”

But if you feel that it’s OK for Congress to publicly humiliate, to arrest and indefinitely detain persons summoned “in aid of legislation,” or “to imprison persons who refuse to testify,” let the Senate—the “representatives of the people,” in the words of Senator Gordon--continue doing what the Executive (Marcos) practically did under an Arrest, Search and Seizure Order (ASSO) during martial law; but, please, NOT IN MY NAME!
guile said…
yeah, senators turn into chameleons whenever elections draw near..

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