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Round 2: Congressional Power of Oversight

(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 constitutional authority.”  

     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.