Expert Opinion

Legal and political rightsof Binay to snub Senate investigation

3

Under the doctrine of separation of powers, the Congress (Senate and House of Representatives) cannot subpoena or compel the President to appear before it to answer an investigation conducted by any of its committees.  If Congress cannot subpoena the President then the same should be applied to Vice President Jejomar Binay considering that the Office of the Vice President is regarded as a component of the Executive Department of the government.  Hence, Binay could not be forced by the Senate Blue Ribbon Committee to appear before it in connection with its inquiry on the alleged overpricing of Makati City Hall II.

Binay has the option not to attend the hearing since only an “invitation” and not a subpoena was sent to him to appear in the investigation.  The pendency of a plunder case against him before the Ombudsman which involves the same transaction further justifies his non-appearance in the Senate.

Also, any congressional investigation must strictly comply with the constitutional requirement that it is in “aid of legislation.”  If the inquiry is merely “in the guise of as aid in legislation”[1] then any subpoena by such committee could be refused, as enunciated by then Constitutional Comission delegate later Chief Justice Hilario Davide, Jr., in the 1986 ConCom deliberations.

Binay knows that it will be a political suicide to attend such investigation since it is now turning out to be a political show rather than an inquiry in aid of legislation.  His detractors who are conducting the investigation had already said that there is “direct testimony” pointing to his alleged guilt – a prejudgment that practically denies him a fair and impartial hearing in the Senate.


But legally speaking, the testimonies of these witnesses could only be treated as “evidence” after giving Binay his lawful right to cross-examine the witnesses in a court of law which he could not do in the Senate as the same is not allowed in a congressional inquiry.  His lawyer cannot even say a word before the committee but could only advise him in whispers.  Thus, the testimonies of the said witnesses in the Senate will remain as mere allegations and not evidence, until and unless they have been subjected to a rigid cross examination which is the only means of testing their credibility and biases.

Atty. Romulo B. Macalintal is known to be the country’s foremost election lawyer. He is also a poet.

[1][1] Cited in a lecture of Chief Justice Reynato S. Puno on February 28, 2005 at the U.P. College of Law.

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3 Comments

  1. Senator Cayetano, Senator Pimentel, and Senator Trillianes – mahiya naman kayo sa another moro moro investigation in aid of your Presidential and Vice Presidential ambition.

    Wala na ba kayong ibang maisip to help your candidacy for a higher office than this moro – moro investigation in aid of political persecution to advance your ambition??????????

    Why not investigate your comrades in the Liberal Party and members of the “KKK” of President BS Aquino to advance your ambition. Siyempre hindi ninyo magagawa dahil kasali kayo sa DAP na yan. Para kang kumuha ng bato pinokpok ninyo sa ulo. Aray!

  2. Jose A. Oliveros on

    In the 1991 case of Bengzon versus Senate Blue Ribbon Committee, the Supreme Court laid down the parameters of congressional investigations purportedly in aid of legislation. Being lawyers and Senators, I expect Senators Koko Pimentel and Alan Cayetano to be well-versed in said case but it is evident that they do not. For their education, therefore, if they are still “educable” (to borrow from Sen. Miriam Defensor-Santiago), I suggest they re-read that decision; or at least, read the column of Atty. Harry Roque in another newspaper. Atty. Roque cannot be accused of being biased for VP Binay because he said he is a common friend to VP Binay and Sen. Cayetano

  3. Okay, Atty. Makalintal will be included in the Binay short list of candidates for Justice Secretary, Solicitor General, Associate Justice or even Chief Justice.