In his famous essay, “The Philippines a century hence,” Jose Rizal alluded to a practice during the colonial period that somehow mitigated the injustices of colonial rule. This institution was called the “juicio de residencia” or judgment of residence. It required Spanish public officials to render a full account of their performance in office at the end of their term.
A governor general, for example, would not be allowed to return to Spain or assume another office until he was cleared by a judicial inquiry. During this review, which could last for six months, testimonies were collected from various individuals. The procedure was carried out automatically, without presuming any wrongdoing. If the outgoing official concerned was unable to give a satisfactory account of his actions, he was fined or jailed.
In today’s language we might call the “residencia” a permanent “truth commission,” a mechanism for reviewing past performance and instilling a strong sense of responsibility in public officials into whose hands the power of the sovereign is entrusted. In colonial Spain, that power belonged to the Crown. In republican systems like ours, it belongs to the people.
Rizal lamented the fact that the “residencia” was abandoned in the early 19th century, after the Spanish constitution of 1812 came into effect. Without an independent body or party like the “juez de residencia” directing the inquiry purely in the name of the sovereign, “chaos begins in the conscience,” observed Rizal. “The country is poor; it is going through a great financial crisis, and everybody points with their fingers to the persons who are causing the evil, and yet no one dares to lay their hands on them.”
The “residencia” was generally conducted by the person already appointed as successor to the position. One can imagine how a review process like this could amount to a ritual of degradation for a once-powerful figure who had abused his powers and prerogatives. The “residencia” stood as a grim reminder to public officials that the power they wielded did not belong to them, that there would be a reckoning at the end of their term, and that therefore they should at all times use their power responsibly.
It is a sound philosophy revolving around an ethic of power that in modern times has been easily lost in the labyrinth of laws and legal procedures. There have been many attempts in various democracies to create a mechanism that would serve this purpose. Perhaps, the most common of these is the Office of the Ombudsman, an agency that is invested with the power to launch its own investigations of public officials without waiting for an actual complaint to be filed. Alas, our expectations of this office within our own system of government have rarely been matched by any remarkable achievement. Many reasons have been cited for this state of affairs, not the least of which is the inadequacy of personnel and resources. But I suspect the more important reason is the political pressure that is often brought to bear on the office whenever powerful and influential figures are involved.
In 1978, the United States Congress passed a couple of laws aimed primarily at curbing the powers of the president and senior executive officials. These are the “Ethics in Government Act” and the “Independent Counsel Act.” Both became law in the aftermath of the Watergate scandal that forced the resignation of Richard Nixon as president.
The independent counsel was not a presidential appointee. He was chosen by a panel of the US Court of Appeals for the District of Columbia Circuit. But, he had the power to inquire into allegations of misconduct, enjoyed an unlimited budget, and was not constrained by a deadline. The attorney general alone could fire him, but only for good cause. The investigation by the IC culminates in a report that is submitted to Congress.
The most famous of the ICs was Kenneth Starr, who conducted a wide-ranging probe of abuses of presidential prerogatives during the term of President Bill Clinton. Starr was a former Court of Appeals judge and solicitor general. It was Starr’s dogged inquiry that produced the details and the evidence of Clinton’s sexual liaison with the White House intern Monica Lewinsky. Among the pieces of evidence that Starr produced were taped conversations between Lewinsky and her close friend Linda Tripp, in which Lewinsky talked at length about her encounters with Clinton. It was Tripp who provided the tapes.
Although Clinton was subsequently acquitted by the Democrat-led US Senate during his impeachment, the whole episode prompted a public apology from him and his license as a lawyer was suspended for five years. In 1999, a year after the Clinton investigation, the position of independent counsel was abolished. Starr had served for five years in that position. He enjoyed such a good reputation as a courageous and principled lawyer that he was once considered for the US Supreme Court. Today, he sits as president of Baylor University.
Supreme Court Justice Antonin Scalia objected to the existence of the office of the independent counsel on the ground that it functioned in effect as a fourth branch of government. Still, subsequent rulings of the high court upheld its constitutionality. One can only suppose that even in a society like America, where a system of checks and balances is in place, there is a strong felt need for a “juez de residencia” invested with enough authority and autonomy to make accountable those who act in the name of the sovereign people.
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