Tuesday, March 25, 2008

The Fallacious Heart of Neri v. Senate is a False Distinction About the Powers of Legislation and Oversight

Anyone who understands English Grammar and Composition will be able to see very easily the gaping logical flaw in the just announced Supreme Court Decision on executive privilege versus the Power of Inquiry of the Congress.

The main decision and the concurring and dissenting opinions in the landmark case of Romulo Neri versus Senate Committees are here at the Supreme Court Website. From the disposing portion in the main ponencia (Justice Leonardo de Castro), I wish to identify the pure, fallacious heart of this infamous decision as the following passage in GR No. 180643 --

The false distinction in the post title is redbolded below:

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita[18] 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, while 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.[19] 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[20] 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.

Hence, this decision.

Definition: The Power to Legislate is the power to MAKE NEW LAWS and RE-MAKE OLD LAWS.
Example: The main piece of legislation for which the Congress is responsible is the National Budget, which it MAKES and RE-MAKES every year.

Thesis: Section 21, which mentions Congressional power to conduct "inquiries in aid of legislation" when applied to the National Budget clearly involves two functions of the Congress if it is to successfully enact the budget: (1) it must gather all information for any new items in the budget; and (2) it must perform oversight of administration, by requiring of the Executive Departments a full accounting of how they spent the last budget and why the new budget is justified. Thus Section 21, with all its enforcement processes applies to the UNITARY POWER OF LEGISLATION (to make and remake the laws) which would be frustrated if information is denied it that is necessary (1) to make new laws (inquiry in aid of NEW legislation) OR (2) to REMAKE old laws (oversight so as to remake OLD legislation) If we do not accept this, then the entire OVERSIGHT process called the Budgetary hearings becomes non-compulsory for Executive Dept. officials. Thus I claim, as the US Congressional Oversight Manual itself proclaims, that OVERSIGHT inquiries ARE inquiries in aid of legislation with equal process to enforce as inquiries in aid of new legislation.

Claim: Section 22 is an irrelevant appendix left over from when the 1986 Constitutional Commission almost established a unicameral Parliament requiring the "question hour" therein in mentioned, which question hour has NEVER been conducted by the Congress in 21 years because it is not part of the Republican Presidential system with a bicameral Congress! [Please See Update 1 below. Hat tip: MLQ3) Nothing whatsoever would be affected by completely ignoring it. The Powers of Oversight DO NOT rest in this one provision, but in DOZENS of enumerated provisions detailing the various powers of Congress to extract information of all kinds from the executive, as detailed more clear-headedly in the documents listed below which inspired this whole chain of reasoning at Philippine Commentary and is required reading for all commentators on this important issue.

Having disposed of the PREMISES of the Main Decision in Neri v. Senate, I conclude that the decision is based on a false dichotomization of the Power of Inquiry and is therefore a decision that is morally and logically NULL and VOID. The Congress must ignore it if it is to do its DUTY of making and re-making the laws.



Whistleblower Protection: A Tale of Reform versus Power

On the Constitutional Grounds For a Whistle Blower Protection Law
(A Philippine Commentary that makes the same rebuttal, only longer.)

It only remains to demonstrate that the ZTE NBN deal involves the suppression of evidence in a potential case of impeachment, in which case the SOLE and EXCLUSIVE power to initiate and to decide belongs entirely to the Congress. Although Executive Privilege covers confidential communications of the President and her men, that is only so if REGULARITY of those conversations (along with their candid nature) is unquestioned.

But I have to leave something for tomorrow...hehe!

I am so glad the Supreme IS as shallow as I feared and has no arguments that have not already been considered here at Philippine Commentarty during the last two years of considering this whole matter starting with Senate v. Ermita.

CLICK THE VARIOUS LABELS BELOW FOR MORE ARTICLES rebutting the SCORP's false distinctions on the Powers of Legislation.

UPDATE 1: See MLQ3's comment in the thread about Joker Arroyo's appearance at a Question Hour in the House (1988 or 1989?). Apparently the House Rule XVII covers Question Hours in the Lower House. But I could not find the phrase "Question Hour" in the Rules of the Senate or the Senate Rules on Inquiries in Aid of Legislation. I stand corrected that the Congress has "never" done a Question Hour, since the House has done it at least once.

An important question around which the validity of much in Neri v. Senate depends, is in what sense we might regard the current Senate investigation as being covered by Section 22 Question Hour provision.

UPDATE 2: Let me re-state my formulation of the FALSE DISTINCTION in Neri v. Senate, which states that:

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, while 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.[19] Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.
The OBJECTIVES are NOT different, unless we claim that the making of new laws is in any sense different from-- the remaking of old laws. The single unitary objective of both is to gather information necessary for LEGISLATION. If we agree that legislation means making and remaking the laws, then Section 22 truly is superfluous. The further distinction the Supreme Court makes is insipid and equally vacuous: that the Congress has compulsory process only for making laws and not for conducting oversight of administration so it can remake the laws as necessitated by what information it discovers.



Excellent dissection of the SC decision, Dean. Easy to understand.

DJB Rizalist said...

THANKS hb! It's just infuriating. That's saying a lot for me.

jhay said...

Bravo Dean! I hope you don't mind me writing a Filipino version in my advocacy blog.

It will help my fellow students understand your dissection and demolition of this appalling decision of the Supreme Court.

MLQ3 said...

djb, just a minor correction. the question hour has been used before. the very first time i ever saw the house in action was during the question hour in which then executive secretary joker arroyo was summoned for questioning by the house.

i don't know if there were others. i seem to recall teddyboy locsin was also subjected to a question hour but i may be wrong. what i distinctly recall was that joker, 20 years younger than he is today, entered the lion's den and bearded the lions.

DJB Rizalist said...

Thanks for the heads up MLQ3. I've updated the post on this matter. very impt.

Pedestrian Observer GB said...


I beg to disagree, if it was easy for someone with a good command of English grammar, how come the 9 jokers errr justices daw did not get it? Aberrrr, go check out the evil trio unleashed at POGB.

DJB Rizalist said...

hAHA even the devil speaks and reads and writes in MANY tongues.

POGB said...

Hey DJB, how about drafting an open letter to the SC injustices and encourage bloggers to post it in their blogs to encourage readers to email it to the SC? Of course you're it, hehehe since you have the legal expertise and we can invite others to collaborate in putting a satirical spin on the letter.