Substantively right but procedurally wrong

Upon learning that the Supreme Court, voting 13-2, “DISMISSED” (all caps and bold fonts in original) the petition in Senate v. Medialdea (prom. July 5, 2022, but released only recently), Senate President Migz Zubiri chimed, “… the ruling does not in any way diminish or disturb long-established doctrines on the legislative’s power to conduct inquiries in aid of legislation.” In my humble opinion, he is substantively right. But the Court ruled that the Senate was procedurally wrong in suing without exhausting available remedies. Let me explain.

BUT FIRST, THE UNDISPUTED FACTS. In its 2020 Annual Audit Report, the Commission on Audit “noted a deficiency” in the accounting of over P67 billion intended for the COVID-19 emergency. This public disclosure spurred an investigation in aid of legislation by the Senate blue ribbon committee focused on disbursements of the Department of Health.

After several hearings, then President Rodrigo Duterte complained of the alleged “browbeating” of the officials of the executive branch appearing as “resource persons” therein. Consequently, he directed then Executive Secretary Salvador Medialdea to issue a memorandum prohibiting these officials from appearing and attending the inquiries which have allegedly been adversely “affecting the [government’s] ability to perform its core mandates [to protect] our people’s right to health in time of pandemic … For strict compliance.”

“Viewing the subject Memorandum as an obstruction to [its] constitutional function to conduct inquiries in aid of legislation,” the Senate challenged it before the Court.

THE COURT RULED THAT THE PETITION WAS PREMATURE. Through the incisive pen of Madame Justice Amy C. Lazaro-Javier, the Court pointed to the Senate’s Rules of Procedure that “effectively proscribes a premature resort to the present special civic action for certiorari” because the upper chamber failed to resolve preliminarily the stance of the executive branch that only the “Joint Congressional Oversight Committee created under the Bayanihan Acts” had the jurisdiction to conduct the inquiry.

Moreover, citing the Rules of Court, the high tribunal held that before availing of the extraordinary judicial remedy of certiorari, the Senate should have demonstrated that it could not have resorted to an “appeal or any other plain, speedy, and adequate remedy in the course of law.” Quite clearly, the Court concluded that the plain, speedy, and adequate remedy is found in the Senate’s Internal Rules.

Clearly, IMHO, the Court used the strict or verba legis method of interpretation, while the dissenters—the two most senior members of the Court, Justices Marvic M. V. F. Leonen and Alfredo Benjamin S. Caguioa—filed stirring dissensions arguing for a liberal interpretation.

Justice Caguioa wrote that the Court should not use “technicalities to conveniently justify its dismissal of the petition” and its evasion of its “obligation to be the final arbiter on questions involving the validity [of legislative and executive acts] … More than just a power or authority to settle disputes, the Court has a duty to fulfill its role in the system of checks and balances.” He stressed that “it is trivial and vain” to wait for and expect the Senate to rule formally on its jurisdiction given that the petition substantively involved the constitutionality of an executive action.

Since I happen to belong to the liberal school of jurisprudence, I would have voted, if I were still an incumbent, with the great dissenters, in the mold of United States Justice John Marshall Harlan.

CIRCLING BACK TO MY THESIS about the Senate President’s chime, I agree that though the Senate lost its bid, the jurisprudence on its power to conduct legislative inquiries in aid of legislation and to call executive officials as resource persons remains rock solid. No reversal or modification had been made or even hinted at by the present Court.

Indeed, Senate v. Ermita (April 20, 2006)—one of the four most important pillars of the Panganiban court I am personally proud of—unanimously and courageously thrashed Executive Order No. 464 and upheld the constitutional power of Congress to “conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.”

The Court, in said case, characterized the power to inquire to be coextensive with the power to legislate, with the reminder, however, that the constitutional rights of persons appearing in or affected by an inquiry should always be respected. It also recognized certain exceptions, notably, the so-called “executive privilege” to withhold confidential military and diplomatic documents and correspondences that affect national security, including presidential conversations with subordinates. By the same token, under the doctrine of separation of powers, the Supreme Court cannot be forced to reveal publicly its internal deliberations on specific cases.

Nonetheless, as a rule, under the constitutional principles of transparency and accountability, “the extraordinary character of the exemptions … inclines heavily against executive secrecy and in favor of disclosure.”

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