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Self-restraint at the Senate

(Article published in the May 24, 2006 issue of Manila Standard Today)

Post hoc, ergo propter hoc, as Logic 101 teaches, is a fallacy, but many newspapers may have fallen into that reasoning pitfall last week.  Many broadsheets described P.S. Res. No. 482 as somehow an offshoot of the meeting of the leaders of the legislature with the chief executive at the Legislative-Executive Advisory Council (LEDAC) held just one day after Congress resumed last Monday, the 15th of May 2006.  Nothing could be farther from the truth.

Sponsored by Senate Rules Committee chair Kiko Pangilinan, and three of his colleagues, Pia Cayetano, Mar Roxas, and Ralph Recto, P.S. Res. No. 482 seeks to amend the current rules of the Senate relating to its inquiries in aid of legislation (the “Rules”).  It was drafted during the last Congressional recess way before the LEDAC meeting and had nothing to do with the appearance of thawing of the cold relations between the Senate and still President Gloria Macapagal Arroyo that some spin doctors would wish to squeeze out of the “agreements” during last Tuesday’s meeting.  It was, in reality, a recognition that the Senate’s current rules, as written, do not adequately interiorize the constitutional mandate on how legislative investigations ought to be conducted.

The “WHEREAS” clauses make very clear where the proposed resolution was coming from. The Rules had to be amended because there is a need to recognize, at least in the text of rules, a very important restriction imposed by the Constitution itself on legislative investigations in aid of legislation.  That restriction is the mandate that the rights of a person appearing in or affected by such inquiries shall be respected (Art.VI, Sec. 21, Const.).

The very acknowledgement of the insufficiency of the text in the Rules is a big first step in what might be a journey of a thousand miles. Whether or not the Senate adopts the proposal or not, I am most certain that, at the very least, a leak in the dike has been sprung by the four senators sponsoring P.S. Res. No. 482.  I believe that eventually the dam of imperious aura of omnipotence, that sense of boundless authority we have lately seen in the conduct of some Senate investigations to do whatever the body had a mind to (seemingly second only to, if not identical with, the state’s ancient claim that it could do no wrong) would be a thing of the past.  The initial 17% of the present Senate sponsoring senators of P.S. Res. No. 482, on the sheer power of the internal logic of their proposal,  will surely get the needed votes to effect the necessary amendments in the Rules.

How are the Rules, as suggested by the Rules Committee of Kiko Pangilinan, to be amended so as to adequately respect, at least on paper, the rights of the persons appearing in or affected by a Senate inquiry?

P.R. Res. No. 482 requires that the law, order, rule that is intended to be the subject of the investigation be specified.  Although this requirement does not however preclude inquiry into other laws, orders or rules that may need to be revised on the basis of what is made known during the inquiry and how the investigation unfolds, it performs the indispensable function of telling all and sundry not only the core subject for the inquiry but also the limits of inquiry. 

On the one hand, this proposed rule will, at the very least, give due notice, or in current corporate business lingo, “full disclosure”, to those whose persons, livelihoods, and interests may be affected by the results of the inquiry.  If they so wish, they could then attend, or at least monitor the course of the investigation, or even propose to participate as resource persons. 

A large audience, of course, is a temptation to some senators to grandstand. But still, it is also concrete and indubitable guarantee of citizen participation which in recent times have worked miracles. Could still President Gloria Macapagal Arroyo have succeeded President Joseph Estrada in 2001 if the debate on the “second envelop” during the Erap impeachment trial not been conducted before the daily packed gallery of the Senate and incessant radio and TV reportage? Critical mass of people, whether physically situated or somehow connected, has a mind of its own difficult for anyone to manipulate.  At the end of the day, in an atmosphere of freedom, the masses will move towards the greater good for the greater number.

At the same time, the specific person targeted, or by misfortune unblessed somehow by being the focus of investigation, is expressly accorded a fair chance of avoiding the intimidating glare of adverse publicity. A new Section 18 is proposed to be added to the Rules stating when the Committee may hold a hearing in executive motion.

These are when the: (a) testimony will disclose matters necessary to be kept confidential in the interest of national security; (b) testimony will relate solely to matters of committee procedure; (c) testimony will tend to charge an individual with crime of misconduct, to disgrace or injure the professional standing of an individual, or otherwise expose an individual to public contempt or will violate the right of privacy of an individual; (d) testimony will disclose the identity of an informer or law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be confidential in the interest of effective law enforcement; (e) testimony will disclose matters required to be kept confidential under other provisions of law or government regulations; and (f) other circumstances of similar nature. 

Just to illustrate how this is an improvement over present rules, Section 11 of the Rules permit an executive session only on the ground that “the interrogation of a witness in a public hearing might endanger national security.”

But more protective of the affected person is proposed Section 20.  The person affected may, as a matter of right, file a sworn statement of facts relevant to the evidence or comment made in the course of the investigation which tends to impugn his character or adversely affect his reputation and his statement will form part of the records of the committee.  He may also request that he be allowed to appear personally before the committee to testify on his own behalf and his testimony “shall be considered by the committee.”  Finally, he may submit questions in writing which he wishes to be asked for the cross-examination of witnesses which questions are also to “be considered by the committee.”

        While there is no assurance that the impugned person’s position will be accepted by the committee, he is at least given an opportunity to say his piece.  That is all that the amended rules could legitimately offer.  After all, even the Constitution’s guarantee of due process law gives only the right to be heard, not the right to be listened to.  With great expectations, we await the Senate to pass, without objection, P.S. Res. No. 482.