Trial by legislation
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  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 ,” 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.