An oversight on oversight

The people send their representatives to Congress not just to make laws but also to see to it that the laws they make are not useless, wasteful or harmful and are being applied according to the purposes intended. The first congressional function is called legislation and the other is known as oversight.

The scope and complexities of modern government provide a compelling argument today for the oversight function of Congress assuming greater significance than mere lawmaking. Congress, in the performance of its oversight role, is understood, among other things, to make sure:

1. The policies or laws so made are executed according to the congressional intent and that any rulemaking authority lawfully re-delegated to the executive branch is used in pursuance of such intent
2. Every expenditure of public money counts (by preventing abuse, dishonesty and waste on the part of the executing agency)
3. There are ample and flexible opportunities for midcourse assessment of legislative or policy goals and priorities so as to allow for corrective actions
4. Individual rights are not transgressed by the execution of the laws
5. Grievances, feedbacks and criticisms (such as by the constituents, the media and the academes) of policies made are appropriately addressed.

Thus, it may be an oversight for the Philippine Supreme Court to imply in any way - as could somehow be gleaned from its newly promulgated decision in Senate of the Philippines v. Eduardo R. Ermita - that the constitutional authority for congressional oversight stems only from Section 22 of Article VI of the Constitution. For there is a wide range of specific constitutional basis from which the oversight authority of Congress is directly derived, such as: a) The power to reorganize the government bureaucracy (including the executive and judicial agencies), b) The power of taxation , c) The power of appropriation, d) The power of impeachment, e) The power of confirmation, f) The power to declare war, g) The power to raise and support the armed forces, and h) The power of inquiry and investigation (into the operation of the executive branch to examine current policies and formulate new, or improve on existing, ones).

U.S. President Woodrow Wilson wrote as a young scholar in his 1885 treatise Congressional Government: A Study in American Politics (in the first known use of the term congressional “oversight”) in this manner:

Quite as important as legislation is vigilant oversight of administration. It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. The informing function of Congress should be preferred even to its legislative function. (Italics mine)

As shown in the foregoing, the power of inquiry provided under Section 21 of Article VI is just one specific source of the totality of the congressional oversight authority. In this case, the power of inquiry is employed as a tool to carry out the oversight function just as the subpoena and contempt powers are availed of as mechanisms ancillary to the same function. It is not therefore correct to suggest that the oversight power is of lesser consequence than the power of inquiry.

Section 22 of the same Article VI is one other source of the oversight authority of Congress. The Supreme Court in the Senate case, adopting the characterization of then constitutional commissioner and chairman of the Legislative Committee Hilario Davide, calls Section 22 as the provision on “Question Hour”. Such interpretation is not mistaken except that this section, it should be noted, underscores more the interdependence of the two political branches of the government than their separation (hence, its rather non-obligatory or “discretionary” nature by contrast with Section 21). The same section acknowledges the privilege of the heads of the executive departments to appear, with the consent of the President, and be heard by Congress on matters pertaining to their departments (as, for example, in a request by a department head for enhanced powers or greater funding for his department).

In the overall scheme of the oversight function of Congress, Sections 21 and 22 of Article VI are not only complementary but, to borrow Davide’s words, “very, very essential” to each other.

In my humble opinion, in the light of the constitutional conception and overriding reach of congressional oversight, the Supreme Court lacks firm grounding in the following explanation it has provided in the said Senate case:

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance.

Nonetheless, when the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory for the same reasons stated in Arnault.

Now, given that “in republican government, the legislative authority necessarily predominates” (James Madison, Federalist No. 51), one wonders why the congressional committees easily backed off (unless of course the committee members have been clueless what’s in their wallet) when President Arroyo upon a claim of executive privilege issued Executive Order 424 and the Senate itself immediately repaired to the Supreme Court to complain as if its subpoena and contempt powers were suddenly whisked away by the order like candy bars snatched by a “schoolyard bully.”

Policymaking on the part of Congress is well-nigh plenary. It is then axiomatic that the presumption of acting responsibly and constitutionally is strongly in its committees’ favor precisely because of the equivalent breadth of the oversight function in the policymaking process. This function preponderates over against the possible invocation of the so-called “executive privilege” - one that has yet to find expression in the explicit language of the Constitution.

Very clearly, executive privilege can only be invoked by way of exception. So when the executive officials fail to show that the privilege is “of such high degree as to outweigh the public interest,” as the Senate ruling describes it, in the disclosure of the supposedly privileged information, congressional oversight, as a general rule, will trump an appeal to the supposed privilege. In that event, contumacious defiance and refusal to disclose the information sought or needed by Congress for legislative purposes renders the withholding official liable to its contempt process and the attendant punitive measures. Indeed, Congress, acting through its committees, need not rely upon the all-too-measured judicial pace to exercise the ultimate power of oversight and thereupon employ the necessary enforcement tools. As to those so covered, respect for the Rule of Law demands reciprocal engagement at the minimum. On the other hand, the traditional media (and the cyberspace) ought to encourage an open and spirited discourse on the issues to secure a political system that is based on a regime of constitutionalism.

Lastly, and if only as an aside, the quote in the Senate decision from Alexander Hamilton which says “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished,” should have been very unflattering to President Arroyo who has decided to guard her executive secrets. Hamilton during the constitutional convention was known to be an unabashed monarchist.