Suffering in silence

PCGG Chairman Camilo Sabio’s reliance on Executive Order (EO) No. 1 which provides that, "no member or staff of the PCGG shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its own cognizance", may no longer stand on very solid footing. Such E.O. issued during the early days following the people power revolution is no doubt still effective. But its provisions must be read and applied in conjunction with the 1987 Constitution subsequently adopted and ratified especially if they are inconsistent with the latter. Obviously, the provision he is invoking runs counter to the power of Congress to conduct inquiry in aid of legislation granted by the Constitution (Section 21, Article VI). Hence, if the PCGG member or staff is called to testify in a legislative proceeding involving inquiry in aid of legislation, invoking said provision in E.O. No. 1 seems untenable or indefensible.

But Chairman Sabio’s ordeal in the Senate is certainly not entirely in vain and an exercise in futility. I know him to be a deep and silent thinker who analyses every action and inaction even during our law school days at the Ateneo where he was our class valedictorian. I can say that he has poured a lot of thought and seriously deliberated on his latest daring move to keep mum on the anomalies in the Philcomsat, one of the companies sequestered by the agency he heads and subject of investigation in the Senate. Indeed, by keeping mum, I think he is just being true to his character of literally doing things in his own "quiet" way. Whatever may be the outcome of this latest episode in his low profile public life, I am sure he will emerge with head unbowed because he stood by his beliefs and convictions to the very end. His gallant stand to "suffer in silence" serves a more noble and worthwhile purpose. Apart from generating so much public attention, it has once more projected the many nagging issues surrounding this Congressional power of inquiry, enough to spur the judiciary to have a closer scrutiny of the same and its many abuses.

Admittedly, the legislative power of inquiry is an essential and appropriate auxiliary to the legislative function. It is co-extensive with the power to legislate. The matters which may be proper subjects of legislation and those which may be proper subjects of investigation are one. It follows that the operation of the government including government agencies created by Congress and their officers whose positions may be regulated or even abolished by Congress, being legitimate subjects of legislation are proper subjects for investigation (Drilon vs. Ermita G.R. 169777, April 20, 2006).

The power to investigate is premised on the valid observation that a legislative body cannot legislate wisely and effectively if it does not itself possess the requisite information respecting the subject of legislation. So recourse must be had to others who possess it. More often however, mere requests for such information are unavailing. Likewise, volunteered information is not always accurate. So some means of compulsion is essential to obtain what is needed (Arnault vs. Nazareno, 87 Phil. 29). This is the rationale behind the concomitant power of Congress to enforce its power of inquiry. And this is the reason why PCGG Chairman Sabio is now detained at the Senate Clinic’s treatment room with a bed, a side table and two electric fans as the only amenities.

Like most powers however, the legislative power of inquiry – with the process to enforce it – is prone to abuse or misuse. Since its recognition in the case of Arnault and later embodied in the Charter itself, there have been so many incidents indicating the improper, unfair, unjust and irregular manner in the exercise of this power. It is common knowledge and open secret not so long ago that disgruntled parties used to go to a Congressman or a Senator if they want to expose deals they were not able to clinch, or transactions damaging to them or where they simply would like to get back at those who have done them wrong. The threat openly and common made then, and up to now is, "sige pa-pa-imbestiga kita kay Congressman or Senador". Also an open secret is the use of this power by members of Congress with vested interest in certain businesses to protect such interest. The current furor swirling around Chairman Sabio is apparently of similar nature. So many exposes of anomalies and other corruptions have been made during these inquiries but none or a few have resulted in legislations. Obviously such inquiries are not in aid of legislation and thus beyond the constitutional power of Congress.

To be sure, Drilon vs. Ermita (supra) has already ruled that in exercising this power of inquiry, (1) the invitation to the public officials concerned, or to any person for that matter must indicate the possible needed statute which prompted the inquiry; (2) the inquiry itself must be conducted in accordance with the rules that have been duly published; (3) the inquiry must respect the rights of persons appearing in or affected by such inquiries; and (4) the inquiry must not fall under the rubric of "executive privilege" like information that would subvert crucial military or diplomatic objectives, disclose identity of persons who furnish information in violation of law or those regarding internal deliberation attached to intra governmental documents reflecting advisory opinions, recommendations and deliberations. In fact Sabio’s case may be exempted under the rule on executive privilege. The problem however is that the power to invoke said privilege is limited to the President only. So it should have been the President who should invoke it in behalf of Sabio.

Nevertheless, Sabio’s courteous but daring silent treatment of the Senate inquiry still gives the SC a chance to once more revisit this power of inquiry and its process of enforcement in order to set more clearly the constitutional parameters of their exercise. Specifically, the SC can rule regarding the role of legislators with vested interest on the subject matter of the inquiry or on how the rights of persons appearing or affected by the inquiry could be protected. Hence something good may still come out of Sabio’s bad experience.

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