THE all-purpose phrase “in aid of legislation” is used by senators and congressmen to justify their conduct of committee hearings and investigations on matters of public and national interest, and to generate nationwide interest in the hearings. With the promise of juicy revelations and fireworks, they are able to secure live coverage of the hearings by the leading broadcast networks.
Since the start of the new millennium, countless inquiries have been conducted by Congress. And their harvest has ranged from the sensational to the tragic to the banal. Yet rarely have the investigations produced the legislation in whose name they were carried out by the honorable members of Congress.
I highlight the tragic as one of the fruits of the inquiries because we should not forget that the sensational suicide of former Armed Forces chief of staff and defense secretary Angelo Reyes was impelled in part by his very public humiliation during a series of hearings at the Senate that were fully televised. He found the injury to his good name too much to bear.
I say also the banal because quite often the hearings have produced little in the way of facts, too much grandstanding by senators, and quite a lot of tears.
The governing provision for hearings and inquiries is contained in Section 21, Article VI of the Constitution,which reads: “The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.”
Investigative authority has limits
The plight of Secretary Reyes is a cautionary tale for all congressional inquiries.
The insertion of “in aid of legislation” as a qualifier for the conduct of inquiries was impelled by established jurisprudence and experience in the United States.
The case and the ruling most often quoted is Watkins vs. United States, which was issued by the US Supreme Court in 1957. It followed America’s traumatic experience under Sen. Joseph McCarthy and his hunt for communists in the US government.
The ruling was written by Chief Justice Earl Warren, and its principal message is that Congress’s investigative authority is not without limits.
Warren wrote: “there is no general authority to expose private affairs of individuals without justification in terms of the functions of Congress…. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government.
“No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the congress.” Watkins v. united states 354 us 178(1957).
The words “Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government” should be underlined, because it is precisely these aspects that appear to have been confused in the current pork barrel inquiry.
In his book, The Constitution of the Republic of the Philippines Explained, constitutional commission delegate Jose N. Nolledo makes this comment that sheds light on the thinking of the Constitutional Commission on congressional inquiries:
“Each house or any of its committees is constitutionally authorized to conduct inquiries in aid of legislation in accordance with its published rules of procedure and the rights of persons appearing in or affected by such inquiries shall be respected. Thus, it was held that such inquiries shall not delve on strictly private affairs of a person unrelated to legislation and the rights of the individual guaranteed by the Bill of Rights like the right against self-incrimination must be respected. (See Quinn s. US, 349 US 155). In such inquiries, the legislature may punish contumacious refusal to testify or produce documents for contempt and no double jeopardy can be invoked in case of punishment for congressional contempt. (See in re Chapman, 166 US 661).
None of this negates the value and service of congressional inquiries, when they are properly and fairly conducted.
In the book, Congress and Its Members, professors Roger M. Davidson, Walterv OlessZek and Frances Lee, provide a persuasive rationale and explanation for congressional inquiries, as follows: “By collecting and analyzing information, House and Senate inquiries can clarify whether specific legislation is needed to address public problems. They also sharpen Congress’s ability to scrutinize executive branch activities, such as the expenditure of funds, the implementation of laws, and the discharge of duties by administrative officials. And they inform the public by disseminating and revealing information.
“Hearings and investigations, in short, are valuable devices for making government accountable to the people. They can spawn new laws or their functional equivalent: unwritten laws that change bureaucratic operations.”
When the Executive wants the inquisition
In all the opinions cited, the danger they most warn about is the possible encroachment by Congress on powers and functions of the executive and judicial branches of government.
But what if the Executive wants its powers to be transgressed by the inquiry – or if it wants the inquiry to be conducted by the Senate or House? What if it’s the one driving the inquisition itself?
What, if after having already filed charges with the Ombudsman, the executive still wants the inquisition to go on?
This is the bizarre situation we are facing now in the pork barrel inquiry in the Senate.
By almost every yardstick, it is now the Department of Justice under Secretary Leila de Lima who is pressing the buttons and calling the shots in the Senate inquiry. De Lima is providing all the witnesses, and the running narrative and agenda for the hearings. She is the one briefing the media on what each witness will provide in his/her testimony. It is she who guarantees protection to the whistleblower-witnesses.
Yellow ribbon chairman Teofisto Guingona now looks like the script girl in the shooting of a movie. He takes care of ensuring that each hearing follows De Lima’s script.
The other day the script took a sudden turn. Lead whistleblower Ben-hur Luy fired his attorney, Levito Baligod, as his counsel at the hearings. Luy claims that Baligod was not attending to his case and his concerns, and was being distracted by other “advocacies.”
This is a major development. It was partly Baligod who had the brainstorm of taking the whistleblower’s story to the Inquirer. And it was his idea to produce the truckloads of evidence; the justice department only embellished it.
A report in the Daily Tribune says that Luy has long wanted to bring out the names of administration allies implicated in the scam; but Baligod for suspicious reasons was suppressing Luy’s desire to testify on this.
The hearing today must get to the bottom of this.
Putting skin in the game
My column last Tuesday (“Pork barrel probe fails test of probity and gravitas”, March 4) drew many comments, and provided me some revealing information and new ammunition.
One blogged comment, penned by a certain “Rose,” said that my suggestion that Sen. Francis Escudero should amend his resolution for the Senate pork barrel inquiry to include an investigation of the DAP is just wishful thinking. Because Escudero would surely refuse, judging by his inaction on an already existing resolution calling for an inquiry into the DAP.
Rose recalled that Sen. JV Ejercito filed Resolution number 287, calling for the Senate to investigate the Disbursement Acceleration Program (DAP). He filed it back in October 2013. The resolution is significant because Ejercito is a former congressman of the 15th Congress, and was one of those who partook of additional DAP funds, over and above his pork allocation, ostensibly to impeach CJ Corona.
Instead of referring Ejercito’s resolution to the Yellow Ribbon Committee, owing to the nature and gravity of the scam involved, the Senate referred it to the Committee on Finance chaired by Escudero. Ejercito’s resolution has been languishing and hibernating in Escudero’s committee up to now.
So, Rose says, I should not think for a second that Escudero will amend his PDAF resolution to include the DAP. Especially since he is a major beneficiary of the DAP.
My basic idea in calling for an amended resolution is to make all those senators who are now most activ and longwinded in questioning the witnesses in the pork barrel inquiry should invest where their mouths are – by expanding the inquiry to include the DAP.
This will be a real test of their being in earnest to get to the truth about the theft and plunder of public money.
The billionaire investor Warren Buffett calls such action “putting skin in the game.” Until Senators Escudero, Cayetano, etcetera, invest “skin in the game”—until they invest something valuable in the inquiry, all their talk about ethics and good governance is hollow.