Tough stand

After all, it looks like PCGG Chairman Camilo L. Sabio is not entirely devoid of sound reasons and solid grounds in refusing to testify and produce evidence before the Senate inquiry of Senator Richard Gordon’s Committee on Government Corporations and Public Enterprises as well as Senator Juan Ponce Enrile’s Committee on Public Services. Contrary to the initial and prevailing impression, Sabio’s position unpopular though it may be, is not really as indefensible as pictured by a number of people including myself. As I previously mentioned, he really studies well and ponders a lot before taking a stand or adopting a move. Fortunately, he is ably advised by some top notch lawyers like retired Ambassador Jimmy Bautista, former Government Corporate Counsel Virgilio Abejo, retired BIR Deputy Director Percy Salazar and Ex-Commissioner Ernesto Cardiño.

Sabio premises his arguments on the extraordinary nature of PCGG as a government agency and its critical function of recovering the plundered wealth of the nation pointing out that as underscored by the Supreme Court itself in one case (Republic vs. Sandiganbayan 173 SCRA 72, 84), "the overriding considerations of national interest and national survival require that the PCGG achieve its vital task efficiently and effectively, with due regard to the requirements of fairness and due process".

Thus as early as April 1988, the Supreme Court, in the case of PCGG vs. Pena (159 SCRA 556, 563) had already upheld the constitutionality of Executive Order (E.O.) No. 1 as well as E.O. Nos. 2 and 14 which comprise the charter of the PCGG. And in so doing the SC expressly made mention not only of Section 4 (a) granting PCGG members immunity from suit in the pursuit of its task but also the controversial Section 4 (b) that Sabio cites in refusing to testify before the Gordon and Enrile committees. The constitutionality of the PCGG’s charter particularly these sections were upheld by the SC precisely to protect the PCGG from being hampered or impaired in the performance and achievement of its vital task.

The factual background of Pena is admittedly not on all fours with the current Senate controversy. The issue of first impression here is the apparent clash between the legislative power of inquiry in aid of legislation and the PCGG’s ample power and authority to carry out its task unhampered and unimpeded. In effect Sabio is of the position that these two powers are not inconsistent and could be reconciled as both have their own limitations. In other words, the Constitution that endowed the legislature with the power of inquiry has not repealed E.O. No 1 specifically Section 4 (b) exempting members or staff of PCGG from testifying in such legislative inquiry. Hence Sabio is now asking the SC to establish the parameters of each of these powers since both of them are not absolute.

Indeed Sabio concedes that PCGG’s immunity under Section 4 (b) is not total but exists only with respect to "matters within its official cognizance". His stand is that the legislature cannot, in the guise of exercising its power of legislative inquiry, interfere with PCGG’s mandate to recover ill gotten properties in such a manner that will hamper and impede them in carrying out such mandate. And he has a valid point here on at least two grounds. First, it is of public knowledge and generally accepted, which Congress itself cannot deny, that this power of legislative inquiry in aid of legislation has been used and abused for the attainment of so many other self serving purposes and protection of vested interests rather than for the crafting of laws. In the current imbroglio alone, one of the senators who initiated and actively participates in the inquiry is undeniably involved, directly or indirectly, in the affairs of some sequestered companies being looked into. Obviously this power is being used for some political muscle flexing. Second, Sabio and the commissioners called to testify and present evidence have no participation at all in the transactions being probed by the Senators. These transactions did not happen during their incumbency and are in fact under litigation. So the commissioners summoned have no personal knowledge and would just be testifying on matters which are judicially on record and therefore may be sub judice. Calling them to the Senate hearing has all the appearance of arrogance in the exercise of power.

Even if it is quite late in the day therefore, something good for the PCGG and for the country may come out of Sabio’s tough stand. Maybe the reason for the slow pace in the PCGG’s efforts to recover the nation’s plundered wealth is precisely because in the past none of the PCGG commissioners have adopted Sabio’s stance and have dared to use the ample powers and authority given to them in the performance of their mandate. With this shift in policy, some concrete results hopefully appear to be in sight. Perhaps PCGG may realize their goal much earlier if one among them would stop talking too much and cease consorting with people who are the very cause behind the creation of PCGG right after EDSA I.

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