First word

IT is a relief that the Supreme Court has taken notice of one sidelight of the unending Pharmally Pharmaceutical controversy and is now moving to hear a petition questioning the Senate's authority to take witnesses into custody on contempt charges.

This opens the way for law and sound argument to enter into the wild and woolly Pharmally case, which is costing the republic plenty of man hours and precious resources, and could rock the ship of state, if not resolved soon.

I was starting to worry that Pharmally might last longer than the coronavirus pandemic at the rate that the combatants, featuring some senators and the president of the republic no less, are resorting to name-calling and insults, and insisting on having the last word in the argument.

By taking the issue of his detention to the high court, Pharmally executive Linconn Ong ensures that the word of a third branch of government (the judiciary) will be heard in this case. We do not have to content ourselves with just the self-serving statements of the executive and the Senate.

Timely and propitious

The high court has requested the Senate to answer Ong's petition questioning his continued detention.

Supreme Court spokesman Brian Hosaka said the Senate respondents were required to comment on the main petition and Ong's request for a temporary restraining order.

"As per Chief Justice Alexander Gesmundo, the respondents in the petition filed by Linconn Ong were required by the court to file their comment to the main petition and prayer for TRO," Hosaka told reporters.

On October 7, Ong, through legal counsel Ferdinand Topacio, asked the Supreme Court to order his release from Senate custody.

Named respondents in the suit were the Senate blue ribbon committee and its chairman, Sen. Richard Gordon; Senate President Vicente Sotto 3rd; and retired Maj. Gen. Rene Samonte of the Senate sergeant-at-arms office.

Ong has been under the custody of the Senate since September 21 after he was cited in contempt for his purported "evasive responses" to the senators' questions regarding the alleged overpriced medical supplies purchased by the government from Pharmally at the onset of the Covid-19 pandemic last year.

The hearing of this petition is propitious in my view because it will compel a fundamental assessment of the Senate's power of investigation and its authority to hold witnesses in contempt on certain conditions, and an assessment as well of the rights of witnesses in Senate hearing to their privacy and against self-incrimination.

It will make way for a long-needed review of the congressional power of investigation and its subpoena power.

It also forces the nation to look at the harm that the Pharmally issue has brought to executive-legislative relations, which normally should be cooperative and harmonious, rather than antagonistic.

An opinion by the Supreme Court on these issues could go a long way to restoring sanity to the present state of affairs.

Sotto and minority leader Franklin Drilon have both expressed confidence that the Supreme Court would uphold the Senate's detention of Ong.

According to Sotto, there are a number of court decisions and jurisprudence established by the Supreme Court that favor the Senate on the issue.

Drilon cited the 1950 jurisprudence in the case of Arnault v. Nazareno which, he said, supports the Senate's decision to detain Ong.

"I am confident that on the basis of decided cases since Arnault v. Nazareno in 1950, the Senate is legally correct in detaining Ong until he answers our questions," Drilon, a former justice secretary, said.

The two said the Senate legal counsel would answer Ong's petition before the high tribunal, although the blue ribbon committee could also handle the case for the Senate.

"It is the Senate legal counsel who should respond, but there is nothing in the Rules that will prevent the [Senate President] from authorizing the blue ribbon to handle the case for the Senate. It happened in the past," Drilon said.

A wider perspective

The high court, however, is certain to review the issue from a much wider perspective, to encompass the subpoena power and the investigative authority of Congress.

The argument is not as cut and dried as Drilon and Sotto make it sound.

How complex is the issue is manifested in a legal study by Christopher Carr and Gregory J. Spak published by the Brigham Young Journal of Public Law (March 1992), which is significantly titled, "The Congressional Subpoena: Power, Limitations and Witness Protection."

The authors said in their introduction: "Congress has made substantial use of the congressional subpoena, liberally invoking its authority to compel witnesses to testify and produce documents in hearings such as the high-profile Savings & Loan/Housing and Urban Development, Iran-Contra and Bank of Commerce and Credit International (BCCI) scandals. This congressional authority is a fundamental underpinning of Congress' critical constitutional oversight, investigative and legislative functions. However, society has a valid interest in ensuring that there are clear limits on Congress' subpoena authority to protect individuals and entities who find themselves subject to this immense and somewhat nebulous congressional fiat."

The tension between Congress' right to investigate and the individual's right to privacy and due process of law is the subject of the study. It examines the congressional rules implementing Congress' power to subpoena witnesses and documents and reviews the few structural limitations on Congress' broad subpoena power. The article then discusses Congress' power to enforce its subpoenas through contempt proceedings. Subsequent sections are devoted to a discussion of the few protections available to the unfortunate citizen who becomes the object of congressional curiosity, including defenses arising from procedural irregularities in issuing the subpoena, a witness' unintentional failure to comply, and those few instances in which the witness is sheltered by a constitutionally based or common law privilege.

I put it to the contending sides in the Supreme Court petition that this US study is most revealing of aspects of the case that are overlooked right now.

It is really pivotal for the Supreme Court to intervene and be heard in the case of Mr. Ong, for this could be the key to writing finis to the country's Pharmally ordeal.

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