Pork barrel investigations

Every once in a while there is an encounter between Congress and the executive during legislative investigations. Not too long ago it was about the ZTE controversy. The dispute was about whether a witness could be compelled to answer questions which he claimed to be covered by executive privilege. When then Neda director general Romulo Neri maintained silence, the Senate left it at that.

Now it is about the pork barrel scam. It started with the issue of whether some witnesses could be compelled to appear.

There are two provisions in the Constitution which provide for investigations. One deals with legislative investigations in aid of legislation, and the other deals with legislative investigations in aid of the “oversight function” of Congress.

Let me say something first about investigations in aid of the oversight function of Congress.

This function is dealt with in Section 22 of Article VI. The oversight function is intended to enable Congress to determine how laws it has passed are being implemented. In deference to separation of powers, however, and because department secretaries are alter egos of the president, they may not appear without the permission of the president. Department secretaries may appear on their own or upon the request of a congressional body but in either case only with the consent of the president.

The more commonly used provision is Section 21 which deals with investigations in aid of legislation. The power of legislative inquiry is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who might possess it.

Experience, however, has shown that mere requests for information are frequently unavailing and that information that is volunteered is not always accurate or complete. Hence, the power of Congress necessarily includes the power to punish a contumacious witness for contempt. No court can enjoin the appearance of a witness who has been summoned.

Can the Senate president prevent the summoning of a witness against the wishes of the chair of the blue ribbon committee? This issue arose on the opening day of the pork barrel investigation.  In my view, the answer depends on whether the published rules of the Senate allow the Senate president to do it. I would give the same answer to the question of whether the Senate as a body may bar the summoning of a witness by an investigation committee. The houses of Congress are free to formulate their rules of conduct and these rules must be published before they can affect outsiders.

The requirement that the investigation be “in aid of legislation” is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy because, unlike in the United States, where legislative power is shared between the United States Congress and the state legislatures, the totality of legislative power is possessed by the Philippine Congress and its legislative field is well-nigh unlimited. It can therefore conduct an investigation on anything which can be the subject of legislation. Nevertheless the Court can protect a witness from being compelled to answer questions that are more in aid of prosecution rather than of legislation.

Who may be summoned to a legislative inquiry? Anybody may be summoned, but because of separation of powers, the president and justices of the Supreme Court may not be summoned. But the Constitution also provides that “the rights of persons appearing in or affected by such inquiries shall be respected.”

The most common defense of a witness being compelled to answer a question is the right against self-incrimination. A witness must take the witness stand when summoned. The time to raise the defense of self-incrimination is when the incriminating question is asked. Refusal to answer can be punished as contempt and the witness may be held in custody by the legislative committee until he answers the question. This is what happened to the witness Arnault in the Tambobong case.

A witness may also refuse to answer a question that asks for a matter covered by executive privilege. But only the president can claim executive privilege. Executive privilege is the right of the president to refuse the disclosure of certain types of information. Thus, a witness claiming executive privilege must show that he is acting on instruction of the president, as Neri did in the ZTE case.

Another basis for refusing to answer a question may be a matter of fairness. For instance, if the case is already being tried criminally, answers in the legislative investigation might prejudice a party in a criminal case.

The investigation of the pork barrel scam has just started. I anticipate that it will be a long process and that it will be interrupted by disputes about the manner of conducting the investigation.