Thursday, April 3, 2008

So Many Things We Owe Our Justices

Washington, DC----With the Philippine Supreme Court ruling on executive privilege (Neri vs. the Senate Committee on Accountability of Public Officers and Investigations et al), President Gloria Macapagal Arroyo, despite continuing calls for her resignation, may have become the most powerful president around. And the SC, the most culpable and complicit Supreme Court anywhere.

The Constitution empowers the two Houses of Congress and all their committees to conduct inquiries in aid of legislation, and to require the heads of departments to answer questions on any matter pertaining to their respective departments. The Constitution does not authorize the President or any department head to withhold any information from Congress.

To safeguard certain secrets, however, the Constitution grants the Executive the privilege to withhold such secrets in a public hearing, and to convey the same to Congress or its committees alone, after the public has been excluded. Thus, Section 22, Article VI of the Constitution provides that, “when the security of the State or the pubic interest so requires and the President so states in writing, the appearance [of department heads] shall be conducted in executive session.”

“Executive privilege”, therefore, allows the President to tell Congress or any of its committees that “the information you seek involves national security or the highest national interest and may be shared only under the strictest confidentiality in an executive session.” Congress for its part has the duty to make sure that the information is sought for compelling reasons, not simply to indulge any desire for political voyeurism.

Under the SC ruling, Cabinet members may no longer have to answer any question from Congress on any controversial issue involving the Office of the President. All they have to do is to invoke executive privilege, and Congress can go no further to oblige them to say anything to either House or any of its committees.

This has the effect of revising the Constitution. It effectively denies and destroys the right of Congress to inquire into sensitive matters involving the Executive, shreds off the principle of check and balance, and reduces Congress to an inferior branch of government, while making the Executive a part bigger than the whole.

The Justices labor to make a false distinction between hearings in aid of legislation and those related to the exercise of Congress’ oversight function. They make the highly questionable claim that Congress may compel the Executive’s participation in one, but not in the other. They forget that the Executive and the Legislative are two co-equal and coordinate branches of government: one may not compel the other to do anything, but a “request” by one may not be denied by the other, especially if it is written in the Constitution.

The SC ruling goes further to propose that inquiries in aid of legislation be linked to specific proposed legislation, and that the majority of a committee that imposes sanctions on a witness be physically present at the hearing when the offense is committed..

This is most surprising. No inquiry in aid of legislation is normally conducted on a specific bill simply because every bill is referred to a committee, which conducts hearings on the same. As to the other issue, one-third of a committee constitutes a quorum, all the other members may or may not concur in the committee recommendations later. To insist that the majority be present when the offense is committed is to render the committee powerless to punish any contempt unless the majority is present. In any case, the rules of Congress are not subject to ratification by the SC or the Executive..

Like it or not, the SC ruling reinforces our people’s worst fears about our Justices. Many are beginning to feel that Mrs. Arroyo’s sins will soon pass away, but the sins of the Justices will continue to inflict grave injury upon the country long after they are gone.

The ruling on executive privilege is but the latest sin.

In 2001, in Estrada v. Arroyo the Justices ruled that Mrs. Arroyo had become President after Joseph Ejercito Estrada had resigned “constructively,” despite the absence of an official resignation. This was no favor to Mrs. Arroyo or anybody. It merely created the legitimacy problem which haunts the entire nation to this day. How do you teach it now in law school? How do you defend it before the bar of history?

Again in 2003, the Justices interpreted the constitutional provision on impeachment while then SC Chief Justice Hilario Davide, Jr. was facing certain impeachment. They saved Davide, but they completely destroyed the impeachment process.

The Constitution provides that the House of Representatives shall have the exclusive power to initiate all cases of impeachment, and the Senate the sole power to try and decide such cases. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

This means that within one year the House shall not initiate. impeachment proceedings in the Senate against anybody who had been subjected to such proceedings before. The Justices, however, interpreted it to mean that no one may be subjected to a second complaint for impeachment, even if the first one had failed to develop into an impeachment proceeding initiated exclusively by the House..

So one can now avoid being impeached simply by causing a nuisance complaint to be filed against oneself. Once that is thrown out for lack of merit, one may no longer be subjected to a serious complaint for at least one year. After which, the process is simply repeated. This formula is good not only for the incumbent but also for the next President, and the next and the next. All this we owe to our Justices.

1 comment:

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