(Article published in the Dec 1, 2003
issue of TODAY, Business Section)
The Supreme Court ruling
declaring the second impeachment complaint against Chief Justice Hilario
Davide, Jr. unconstitutional did not end the fight between the legislature
and the judiciary. That was just the first round.
The contest is slated for more.
If I read the events
correctly, the Chief Justice, who had to be central target of the attack,
was not the casus belli.
The impeachment process was activated by its advocates as a
reaction, ill-advised if I may say so, to what they considered refusal of
the Supreme Court to subject itself to Congressional scrutiny on the way
the Judiciary Development Fund (JDF) was managed or, depending on your
sentiments, mismanaged. Typical
of the way we resolve our conflicts this side of heaven, we left that
issue hanging and found respite by tackling instead a legal but collateral
matter. That way out was not
a “win-win” solution, probably the most abused oxymoron nowadays, and
was actually a “loss-loss”, but it did enable the country to move, or
more accurately, amble on.
The prosecution (or, if
you are, like me, a Davide supporter, persecution) rested, but it is
foolish to think that the JDF issue would rest in peace.
The JDF is a huge fund and questions of whether all the money that
is supposed to go into the pool actually do and whether money in the pool
always go out the way it is supposed to remain to be matters of serious
public interest. The JDF will always be fair game for anyone with motive,
patriotic or otherwise.
Before the shooting and
shouting starts the second round, it is important for us to get a
grounding on subject matter, lest personalities (as they did in the Davide
impeachment case) cloud the issues. The
grist is the so-called “oversight” powers of Congress.
Congress was from the
beginning never famous for avoiding oversights (e.g. the error in the
taxation of long-term investments or deposits prior to the expiration of
the exempting period of five years) but this type of oversight
is of recent vintage. It
refers to Congress’s wish to look over the shoulders of the other
branches of government. It is found in many a law affecting you and me, particularly
those dealing with funds, including private ones, such as the Anti-Money
Laundering Law and the recently enacted Clean Air Act.
We cannot afford to ignore it, even through oversight.
The Philippine case on
Congressional oversight that will be quoted, like the bible by both angels
and devils, is Macalintal v. COMELEC,
G.R. No. 157013, penned by Justice Ma. Alicia Austria-Martinez and
promulgated on 10 July 2003. By
reference, the decision incorporated the relevant portions of Justice
Reynato S. Puno who issued his own concurring and dissenting opinion to
the decision of the majority. The
erudition that follows is from him; the irreverence is mine.
As with many of our legal
doctrines, the power of Congressional Oversight is an import from the
United States. It is woven
within the intricate tapestry of principles and axioms, both of which are
expected to be accepted as true with neither the need or possibility of
proof, known to political law students as “separation of powers” and
“checks and balances”. In
brief, the thesis is that the power to make laws includes the power to
know. To know what needs a
law, to know what law is needed, and to know how the law, if at all, is
put into practice, presumably, so that the lawmaker could make more law. That in order to make a law a person must know, is, of
course, a naïve proposition because, as we all know, there are some
people in Congress who make law but, knowingly or unknowingly, do not know
anything. We have accepted
the premise without question, nevertheless, as we did the reality of the
American Santa Claus.
In the home of the free
and land of the brave, where they no longer feel free to travel anywhere
they wish and are afraid of terrorists that lurk in every corner of the
globe, the complexity of modern life threatened to expose the fiction that
the legislature had the wisdom and the vision to lead the people into the
promised land when more and more the ability to make rules that matter had
time and again to be vested in a hybrid institution (initially anathema to
the theory of “separation” of legislative and executive powers) known
as administrative bodies. These
are the government institutions that, unlike legislators, really do know
because, due to the nature of their jobs, they had to know and, for that
reason, the judges were quick to announce the hermeneutic principle that
interpretations of the statutes by administrative bodies who enforce it
law carry great weight on the question of what the statute means.
Fear of losing turf, which
is the mother of a lot of legislation, thus spurred the legislature to
insist not only in passively monitoring how the executive was doing (e.g.
getting annual reports from the Commission on Audits) or in actively
conducting investigative hearings (e.g. pretending that some law needed
amending because of what they think Jose Pidal was able or not able to
do), but also in having a hand, through what is known as the Congressional
Oversight Committee whose members vary in accordance with the vested
interest affected by the particular statute, in making the rules that
implement the law.
The last instance is, of
course, fraught with internal contradictions.
For instance, why delegate rule-making if you continue to want to
have a hand in the cookie jar? (Suggested answer: the cookies are nice to
eat.) Also, why delegate the power to interfere in a committee? Is
it not better to reserve that right to Congress as a whole? (Suggested
answer: some Congressmen have
sweeter teeth than others). And,
finally, is not the task to ensuring that the administrative body acts
within its delegated authority a judicial function? (Suggested answer:
Yes, but judges are as
vulnerable to everything the flesh is heir to as legislators, some of whom
are known connoisseurs of flesh. So,
share and share alike.)
When the Congressional
desire to interfere clashes with the Constitutional protection to be left
alone, something had to give and the Macalintal
decision gave it to “independence”.
Tersely, the Supreme Court held that “by vesting itself with the
powers to approve, review, amend and revise the IRR (implementing rules
and regulations) for the Overseas Absentee Voting Act of 2003, Congress
went beyond the scope of its constitutional authority.
Congress trampled upon the constitutional mandate of its
It would be premature, as the protagonists rest between rounds, to speculate on how much, if at all, the Macalintal ruling will bear on Congress’ desire to peep and grope underneath the judicial robes at the JDF. In the meantime, the Ralph Naders of Philippine law, if their purse and practice warrant, would do well to look into laws now in force that carry the same text struck down by Macalintal.