Wednesday, March 26, 2008

Neri v. Senate, a bad decision

[Neri v. Senate Committee] is really bad decision. It pays lip service to the doctrines laid down in Ermita and expands executive privilege to the detriment of legislative inquiry and right to public information. - by Prof. Edwin Lacierda (per mlq3)

In an earlier entry, I have submitted that the Supreme Court in Francisco, Jr. v. House of Representatives has practically crippled the impeachment process by adopting the Bernasian reading of “initiate” under Article XI, Section 3 of the Constitution in lieu of the interpretation of the House of Representatives, and taking up what it supposed as its “activist” role, declared such interpretation of a coordinate branch, contained in the House Impeachment Rules, unconstitutional. Under the impeachment gun then was Hilario Davide, Jr. and so the robed gang huddled together and quite expectedly hailed their Chief - at the expense of the Constitution. Francisco, I concluded, is therefore the father of Lozano and Pulido.

Now, Senate v. Ermita can also say, “Here, have a cigar, we have sired a son … in Neri v. Senate Committee.”

Because the father had misspoken, the son lost its way, and unabashedly acknowledged being befuddled. The majority in Neri conceded:
Senate v. Ermita ruled that the “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress.
I had the chance here to analyze Senate v. Ermita in re Section 21 and Section 22 of Article VI of the Constitution as follows.

The power of inquiry provided under Section 21 of Article VI is just one specific source of the totality of the congressional oversight authority [other sources include 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, and g) the power to raise and support the armed forces]. 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 v. Ermita, 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 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 v. Ermita 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.
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 Senate v. Ermita 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.

I did mock the Senate then when it dashed to the SC like a cry baby complaining about EC 424, this way:
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.”
This time the bully is in the Court’s yard. For the majority in Neri, while pretending to sing paean to “the fundamental constitutional principles which underlie our tripartite system of government,” has ultimately decided, invoking the Court’s so-called expanded certiorari jurisdiction under Section 1), Article VIII of the Constitution, to clip not just one particular checks-and-balances mechanism expressly committed by the Constitution to a co-equal branch but also effectively encroach into the very core of the power of Congress, the power to make laws.

Needless to state, when the Court proceeds to nullify an act of a co-equal branch, especially the most representative of the three branches, it should only do so when the unconstitutionality (or grave abuse of discretion) is shown to be so manifest as to leave no room for reasonable doubt because even a court of last resort must also confess the limits of its own powers. Therefore, whenever an act of Congress is rational it must be presumed to be regular and constitutional and the Court must respect the great range of legislative power or discretion whether in legislating or interpreting the constitution by leaving it unperturbed in the absence of moral certainty as to its infirmity. In like fashion, Congress should not by law interfere in the way the Court arrives at its decisions or in the deliberation over its cases, or in the manner the Commander-in-chief for instance prosecutes a war against an enemy because one power or the other does not belong to it but to a co-equal branch.

By force of this logic, there was no reason for the Court in Neri to unnecessarily try to import its own judgment at the very inception of legislative process or of initiating remedial legislation and waste its own time, when it could have easily conceded that on the hand the President is entitled to executive privilege (to withhold information requested by other branches of the government) by established constitutional doctrine and that on the other the Senate or its committees by express provision of the Constitution have the power of inquiry in aid of lawmaking (which includes the power to probe into government agencies to expose corruption).

Considering however that Mr. Neri himself, without seasonably invoking the supposed lack of proper publication of the Senate Rules, already testified under oath before the joint Senate committees that he had been offered a “bribe” of 200 million pesos (“Chairman Abalos offered me 200 million for this,” Mr. Neri has testified) involving the incurring of a foreign loan, it would have been logical to look in the Constitution for express exception or limitation not to the congressional power of inquiry but to the invocation of executive privilege. Section 21, Article XII (National Economy and Patrimony) provides such express limitation to the executive privilege of non-disclosure where it states: “Sec. 21. Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.” (Italics mine.) Perforce executive privilege must give way to such a categorical mandate of disclosure in the plain language of the Constitution.

Dismissing forthright the petition of Mr. Neri would have been the simple end of the matter since neither the President nor the Supreme Court is above the Constitution.


Blogger DJB Rizalist said...

This was very good Abe! Thanks for pointing me to it on MLQ3's. Nice work. Keep it up!

March 31, 2008 10:15 PM  
Blogger Abe N. Margallo said...


Haven't you noticed, I have also concurred in your opinions on the matter?

Good job, panero.

April 01, 2008 12:49 AM  
Blogger Edwin Lacierda said...

Hello Abe,

It's been awhile since we discoursed. I really think you should come home and share your insights on larger audience. Your thoughts are incisive as always.

If you decide to visit us here, let us know. Perhaps, dean and manolo and I can have coffee with you. Heck, we can even ask Manolo to guest you in The Explainer. he he he.

Always good to hear from you.

April 12, 2008 2:03 PM  
Blogger Edwin Lacierda said...

This comment has been removed by the author.

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