Monday, April 14, 2008

Is the SC clueless of the meaning of legislative oversight?

The following is in part what the Supreme Court of the Philippines has held in Neri v. Senate Committee about the meaning of “congressional oversight” as earlier expounded in Senate v. Ermita:
__________

At the outset, a glimpse at the landmark case of Senate v. Ermita becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function. Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court’s pronouncement in Senate v. Ermita is clear:
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.
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held:
As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.
__________

My original reaction to Senate v. Ermita was a play of words: “An oversight on oversight.” The pun was of course meant to play up the Court’s “careless error” (oversight) in understanding the scope of congressional “watchful care” (oversight) of public policy execution. Why the highest court of the land appears clueless (twice) about legislative oversight really boggles the mind considering that two incumbent members of the Court have been outstanding former members of the Congress, Justice Tinga (a three-term congressman) and Justice Nachura (a two-term congressman).

Legislative oversight is broadly acknowledged as a long-standing process inherent in the power to make laws exercised by Congress basically through its various committees. Any congressman or senator who deserves the title ought to be familiar with this very important legislative task the essential purpose of which is to ensure the government is held accountable for carrying out the letter and the spirit of the law the legislature enacts.

Oversight is in effect a monitoring function of the vast public policies emanating from Congress written in statutes that are oftentimes deliberately general. A good example is the Labor Code of the Philippines, which because of its rather broad structure still necessitates the promulgation of a more detailed Omnibus Rules Implementing the Labor Code to enforce effectively the legislative policy on labor. The idea behind what some would claim as amounting to a “re-delegation” is to explore not what the implementing agency must do but what it can do under the law to accomplish its intent. The legislature in turn keeps an eye on this implementation phase of the law through oversight.

On the other hand, Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES, is an example of an attempt to enact a law to give Congress an oversight leverage in terms of enhancing or reinforcing the implementation of existing laws.

The most familiar aspect of oversight involves legislative inquiry or investigation in aid of legislation. The inquiry may refer to a specific legislative proposal (or in aid of making law in the strict sense of the term) or extend to any and all matters vested by the Constitution in Congress; or it may be conducted to probe government inefficiency, corruption, fraud or abuse to inform itself in the formulation of policy on those areas of public concerns. The investigation is not deemed misused regardless of whether it results in actual legislation or not. In this sense, legislative inquiries in aid of legislation as expressly provided under Section 21, Article VI of the Constitution serve as a tool of the broader implied oversight power of Congress in similar way that the contempt power of Congress works as a tool of its investigatory power.

Another essential, and probably the most efficacious, legislative oversight tool is the power of the purse. By employing this oversight mechanism, Congress can curtail or increase funding for a governmental agency, or reduce its personnel or expands its functions, as may be warranted. It is in this sense that heads of departments on their own initiative may appear before Congress for “question hour” pursuant to Section 22, Article of the Constitution on matters pertaining to their departments such as to explain the need for departmental budgetary changes.

The congressional confirmation of the presidential appointments involving heads of executive departments, ambassadors and officers of the armed forces from the rank of colonels is an oversight function of no insignificant worth but it is oversight nevertheless. So is the oversight that takes place whenever members of congress consult with their constituencies to obtain information that may form part of their committee reports or be availed of in congressional debates.

Oversight, which comes in many other forms than congressional inquiries in aid of legislation, takes up a lot of legislative time and is often observed as being improperly used for grandstanding purposes or gaining sound bytes by some ambitious politicians. It is perceived as counterproductive sometimes or perhaps most of the time. One thing is however certain: the scope and meaning of legislative oversight are not confined only to the so-called “question hour” under Section 22, Article VI of the Constitution as the Supreme Court had boldly pronounced in Senate v. Ermita and then reiterated in Neri v. Senate Committee.

How could the Supreme Court miss it twice?

The first time, it is possible the Court may have committed an “error of judgment” which is not punishable per se; the second time, it is as not as easy to justify the voluntary ignorance as other than a political decision by a partisan court, a judicial misconduct liable to rise to the level of an impeachable offense.

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