Republic
of the Philippines
SUPREME
COURT
Manila
EN
BANC
ROMULO
L. NERI,
Petitioner, |
-versus-
G.
R. No. 180643
March
25, 2008
SENATE
COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY,
Respondents.
|
CONCURRING
OPINION
CORONA,
J.:
The … deal which gave rise to petitioner’s examination by a committee
of the Senate was one that aroused popular indignation as few cases of
graft and corruption have….
All the more necessary it is that we should approach the consideration
of this case with circumspection, lest the influence of strong public
passions should get the better of our judgment. It is trite to say that
public sentiment fades into insignificance before a proper observance
of constitutional processes, the maintenance of the constitutional
structure, and the protection of individual rights. Only thus can a
government of laws, the foundation stone of human liberty, be
strengthened and made secure for that very public.[1]
The history of liberty has largely also been a chronicle of the
observance of procedural safeguards.[2] The annihilation of liberty, on
the other hand, often begins innocently with a relaxation of those
safeguards “in the face of plausible-sounding governmental claims of a
need to deal with widely frightening and emotion-freighted threats to
the good order of society.”[3]
With this in mind, I wish to address an aspect of this case distinct
from but nonetheless just as important as the burning issue of
executive privilege that is engrossing and deeply dividing the nation.
This cannot be relegated to the sidelines as the Court settles the
raging conflict between the executive and legislative departments.
In the middle of the struggle for power stands petitioner Romulo L.
Neri, the man in the eye of the storm. As Citizen Neri, he has rights
guaranteed by the Constitution. In other words, in the case of Neri as
an individual and as a citizen, liberty is at stake. And individual
liberty can never be overlooked, disregarded or taken for granted.
Under our fundamental law, the constitution of liberty precedes the
constitution of government. Thus, it is the Court’s high duty not only
to arbitrate the intense tug-of-war between the political branches but,
more importantly, to keep the bell of liberty tolling amidst the noise
of political turmoil.
Factual
Backdrop
The Senate, through respondent Committees (the Senate Committees on
Accountability of Public Officers and Investigations [Blue Ribbon
Committee], on Trade and Commerce and on National Defense and
Security), began an inquiry into the allegedly anomalous national
broadband network (NBN) project. Respondent Committees vowed to pursue
the truth behind the NBN project and what they believed to be the
allegedly disadvantageous contract between the Republic of the
Philippines, represented by the Department of Transportation and
Communications, and Zhing Xing Telecommunications Equipment
(ZTE). Respondent Committees claimed they wished to overhaul the
purported “dysfunctional government procurement system.”chanroblesvirtualawlibrary
In connection with the legislative inquiry, Neri was issued an
invitation to attend respondent Committees’ proceedings to shed light
on the NBN project and explain the government’s agreement with ZTE.
Neri honored the invitation and attended the hearing on September 26,
2007. For 11 hours, he testified on matters which he personally knew,
except on those matters which he believed to be covered by executive
privilege.
On November 13, 2007, respondent Committees issued a subpoena ad
testificandum to Neri requiring him to appear before them and to
testify again on November 20, 2007.
In a letter dated November 15, 2007, Executive Secretary Eduardo R.
Ermita requested Senator Alan Peter S. Cayetano, chairman of respondent
Blue Ribbon Committee,[4] to dispense with the testimony of Neri on the
ground of executive privilege which he (as Executive Secretary) was
invoking “by order of the President.”chanroblesvirtualawlibrary
As he was ordered by the President not to appear before respondent
Committees, Neri did not attend the November 20, 2007 hearing. But
respondent Committees issued an order dated November 22, 2007 directing
Neri to show cause why he should not be cited in contempt under Section
6, Article 6 of the Rules of the Blue Ribbon Committee for his
non-appearance in the November 20, 2007 hearing. In response,
Neri submitted his explanation in a letter dated November 29, 2007. On
December 7, 2007, he filed this petition for certiorari with prayer for
the issuance of a temporary restraining order and/or preliminary
injunction assailing the November 22, 2007 show cause order for having
been issued with grave abuse of discretion.
Neri’s explanation and this petition notwithstanding, respondent
Committees cited him in contempt in an order dated January 30, 2008.
They ordered his arrest and detention until such time that he should
appear and testify.
Strict
Observance Of Rules Of Procedure Governing Legislative Inquiries
Section 21, Article VI of the Constitution provides: chanrobles virtual law library
Section
21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
persons appearing in, or affected by, such inquiries shall be
respected. (emphasis supplied)
This recognizes the power of Congress to conduct inquiries in aid of
legislation. This power is intimately connected with the express power
of legislation and does not even have to be expressly granted.[5]
Nonetheless, the drafters of the Constitution saw it fit to include a
provision that would clearly spell out this power. The incorporation of
the rule on legislative inquiry in the Constitution, however, was not
intended to authorize the conduct of such inquiries but to limit
them[6] and to forestall possible abuse. On this account, Justice
Isagani Cruz commented: chanrobles virtual law library
The
reason is that in the past this power was much abused by some
legislators who used it for illegitimate ends or to browbeat or
intimidate witnesses, usually for grandstanding purposes only. There
were also times when the subject of the inquiry was purely private in
nature and therefore outside the scope of the powers of the Congress.
To
correct these excesses, it is now provided that the legislative
inquiry must be in aid of legislation, whether it be under
consideration already or still to be drafted. Furthermore, the conduct
of the investigation must be strictly in conformity with the rules of
procedure that must have been published in advance for the information
and protection of the witnesses.[7] (emphasis supplied)
Section 21, Article VI regulates the power of Congress to conduct
legislative investigations by providing a three-fold limitation: (1)
the power must be exercised in aid of legislation; (2) it must be in
accordance with the duly published rules of procedure and (3) the
rights of persons appearing in or affected by such inquiries shall be
respected.
The first limitation ensures that no person can be punished for
contumacy as a witness unless his testimony is required in a matter
which Congress or any of its committees has jurisdiction to inquire
into.[8] This is an essential element of the jurisdiction of the
legislative body.[9]
The second limitation means that either House of Congress or any of its
committees must follow its duly published rules of procedure. Violation
of the rules of procedure by Congress or any of its committees
contravenes due process.[10]
The third limitation entails that legislative investigation is
circumscribed by the Constitution, particularly by the Bill of Rights.
As such, this limitation does not create a new constitutional
right.[11] It simply underscores fundamental rights such as the rights
against self-incrimination, unreasonable searches and seizures and to
demand that Congress observe its own rules as part of due process.[12]
Thus, the respected American constitutional scholar Lawrence H. Tribe
observed: chanrobles virtual law library
Although
only loosely restricting the substantive scope of
congressional investigations, [Congress is required] to adopt important
procedural safeguards in the conduct of its investigations. Because the
Bill of Rights limits the lawmaking process as well as the content of
resulting legislation, congressional investigators must respect the
Fifth Amendment privilege against compelled self-incrimination, the
Fourth Amendment prohibition against unreasonable searches and
seizures, and the requirement of due process that, if government actors
promulgate rules limiting their own conduct, they must comply with such
rules.[13] (emphasis supplied)
In this case, the Senate promulgated Rules of Procedure of the Senate
Governing Inquiries in Aid of Legislation (Rules of Procedure of the
Senate) as well as the Rules of the Committee on Accountability of
Public Officers and Investigations (Rules of the Blue Ribbon Committee)
pursuant to Section 21, Article VI. These rules of procedure serve as
procedural safeguards in legislative investigations. They guarantee
that proceedings are orderly, effective and efficient. More
importantly, they shield the witnesses appearing before the Senate or
its committees from unnecessary, unreasonable or arbitrary action on
the part of the inquiring body or its members. Hence, they are the
standards upon which the validity of any action undertaken by the
Senate or its committees shall be measured.
The rules of procedure are required to be promulgated and published not
so much to impose a duty on the witness appearing in a legislative
inquiry but to enforce restrictions on Congress regarding the manner it
conducts its inquiry. Thus, the Senate or any of its committees are
bound to observe the very rules they themselves established to govern
their own conduct. Since this obligation is imposed by the Constitution
itself, it cannot be ignored, trifled with or violated without
transgressing the fundamental law.
In sum, Congress has the inherent power to conduct inquiries in aid of
legislation. However, as a condition for the exercise of this power,
the Constitution requires Congress to lay down and publish specific and
clear rules of procedure. No action which affects the substantial
rights of persons appearing in legislative inquiries may be taken
unless it is in accordance with duly published rules of procedure. In
other words, before substantial rights may be validly affected,
Congress or its committees must faithfully follow the relevant rules of
procedure relating to it. This will ensure the constitutional intent of
respect for the rights of persons appearing in or affected by
legislative inquiries. In the absence of a rule of procedure on any
matter which is the subject of a legislative inquiry, any action which
impinges on substantial rights of persons would be unconstitutional.
Absence
Of Power To Order Arrest
The gravity of the consequences of respondent Committees’ order to
arrest Neri allegedly for being in contempt cannot be underestimated.
It poses a serious threat to his liberty.
The Rules of Procedure of the Senate and the Rules of the Blue Ribbon
Committee do not state that respondent Committees have the power to
issue an order of arrest. Such omission is fatal to respondent
Committees’ cause. It negates their claim that the order to arrest Neri
is valid, lawful and constitutional.
As stated previously, the second constitutional limitation to the power
of legislative investigation is the promulgation and publication of
rules of procedure that will serve as guidelines in the exercise of
that power. Respondent Committees transgressed this constitutional
constraint because there is no rule of procedure governing the issuance
of an order of arrest.
Under the Rules of Procedure of the Senate and the Rules of the Blue
Ribbon Committee, respondent Committees are authorized only to detain a
witness found guilty of contempt. On the other hand, nowhere does the
word “arrest” appear in either rules of procedure.
There is a whale of a difference between the power to detain and the
power to arrest.
To detain means to hold or keep in custody.[14] On the other hand, to
arrest means to seize, capture or to take in custody by authority of
law.[15] Thus, the power to detain is the power to keep or maintain
custody while the power to arrest is the power to take custody. The
power to detain implies that the contumacious witness is in the
premises (or custody) of the Senate and that he will be kept therein or
in some other designated place. In contrast, the power to arrest
presupposes that the subject thereof is not before the Senate or its
committees but in some other place outside.
The distinction is not simply a matter of semantics. It is substantial,
not conceptual, for it affects the fundamental right to be free from
unwarranted governmental restraint.
Since the Rules of Procedure of the Senate and the Rules of the Blue
Ribbon Committee speak only of a power to order the detention of a
contumacious witness, it cannot be expanded to include the power to
issue an order of arrest. Otherwise, the constitutional intent to limit
the exercise of legislative investigations to the procedure established
and published by the Senate or its committees will be for naught.
In this connection, respondent Committees cannot rely on Arnault v.
Nazareno to justify the order to arrest Neri. Arnault was explicit: chanrobles virtual law library
Like
the Constitution of the United States, ours does not contain an
express provision empowering either of the two Houses of Congress to
punish nonmembers for contempt. It may also be noted that whereas in
the United States the legislative power is shared between the Congress
of the United States, on the one hand, and the respective legislatures
of the different States, on the other — the powers not delegated to the
United States by the Constitution nor prohibited by it to States being
reserved to the states, respectively, or to the people — in the
Philippines, the legislative power is vested in the Congress of the
Philippines alone. It may therefore be said that the Congress of the
Philippines has a wider range of legislative field than the Congress of
the Unites States or any State Legislature.
Our
form of government being patterned after the American system — the
framers of our Constitution having been drawn largely from American
institution and practices — we can, in this case, properly draw also
from American precedents in interpreting analogous provisions of our
Constitution, as we have done in other cases in the past.
Although
there is no provision in the Constitution expressly investing
either House of Congress with power to make investigations and exact
testimony to the end that it may exercise its legislative functions
advisedly and effectively, such power is so far incidental to the
legislative function as to be implied. In other words, the power of
inquiry — with process to enforce it — is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information
respecting the conditions which the legislations is intended to affect
or change; and where the legislative body does not itself possess the
requisite information — which is not frequently true — recourse must be
had to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed.
(McGrain vs. Daugherty, 273 U.S., 135; 71 L. ed., 580; 50 A. L. R., 1.)
The fact that the Constitution expressly hives to congress the power to
punish its Members for disorderly behaviour, does not by necessary
implication exclude the power to punish for contempt any other person.
(Anderson vs. Dunn, 6 Wheaton. 204; 5 L ed., 242.)[16] (emphasis
supplied)
Arnault was decided under the 1935 Constitution in which Section 21,
Article VI of the 1987 Constitution has no counterpart. Since there was
no provision on legislative inquiry at that time, Arnault defined and
delimited the power “partly by drawing from American precedents and
partly by acknowledging the broader legislative power of the Philippine
Congress as compared to the U.S. Federal Congress which shares
legislative power with the legislatures of the different states of the
American union.”[17]
Under the 1987 Constitution, however, the power has been expressly
subjected to three limitations. Thus, while Congress cannot be deprived
of its inherent contempt power (and the corollary power to order the
arrest of a contumacious party) in relation to legislative
investigations, the power must be wielded subject to constitutional
constraints. In this case, the Senate or any of its committees may
order the arrest of a contemnor only in accordance with its duly
published rules of procedure. In the absence of a provision stating
how, why and when arrest may be ordered, no order of arrest may validly
be issued.
Nor can respondent Committees seek refuge in Senate v. Ermita.[18] In
that case, the Court declared: chanrobles virtual law library
Section
21, Article VI likewise establishes crucial safeguards that
proscribe the legislative power of inquiry. The provision requires that
the inquiry be done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published rules of
procedure.
An action as critical and as significant as an order of arrest must be
done strictly in accordance with a specific provision in the duly
published rules of procedure. Otherwise, it is constitutionally invalid.
This interpretation does not unduly emasculate the power to conduct
legislative investigations. Any evisceration results not from an
interpretation which hews closely to the language of the Constitution
but rather from the manifest failure to establish rules of procedure on
a matter that infringes on the individual’s liberty.
Lack
Of Sanction On Refusal Or Failure To Obey Subpoena Ad Testificandum
Neri was ordered arrested and
detained allegedly for contempt because of his refusal or
failure to comply with a subpoena ad testificandum. However, a careful
reading of the Rules of Procedure of the Senate and the Rules of the
Blue Ribbon Committee shows that they do not provide for a sanction on
the refusal or failure to obey a subpoena ad testificandum. Respondent
Committees are authorized to detain a person only in the exercise of
their contempt power. Section 18 of the Rules of Procedure of the
Senate and Section 6, Article 6 of the Rules of the Blue Ribbon
Committee respectively provide: chanrobles virtual law library
Sec.
18. Contempt
The
Committee, by a vote of a majority of all its members, may punish
for contempt any witness before it who disobeys any order of the
Committee or refuses to be sworn or to testify or to answer a proper
question by the Committee or any of its members, or testifying,
testifies falsely or evasively. A contempt of the Committee shall be
deemed a contempt of the Senate. Such witness may be ordered by the
Committee to be detained in such place as it may designate under the
custody of the Sergeant-at-Arms until he agrees to produce the required
documents, or to be sworn or to testify, or otherwise purge himself on
that contempt. (emphasis supplied)
SECTION
6. Contempt – (a) The Committee, by a vote of a majority of all
its members, may punish for contempt any witness before it who disobeys
any order of the Committee, including refusal to produce documents
pursuant to a subpoena duces tecum, or refuses to be sworn or to
testify or to answer a proper question by the Committee or any of its
members, or testifying, testifies falsely or evasively. A contempt of
the Committee shall be deemed a contempt of the Senate. Such witness
may be ordered by the Committee to be detained in such place as it may
designate under the custody of the Sergeant-at-Arms until he agrees to
produce the required documents, or to be sworn or to testify, or
otherwise purge himself on that contempt.
(b)
A report of the detention of any person for contempt shall be
submitted by the Sergeant-at-Arms to the Committee and the Senate.
(emphasis supplied)
The absence of a provision penalizing refusal or failure to comply with
a subpoena ad testificandum should be interpreted against respondent
Committees. Neri cannot be punished for contempt for lack of,
again, the requisite published rules of procedure.
This deficiency becomes all the more pronounced when compared to
Section 9, Rule 21 of the Rules of Court: chanrobles virtual law library
SEC.
9. Contempt. – Failure by any person without adequate cause to
obey a subpoena served upon him shall be deemed a contempt of the court
from which the subpoena is issued. If the subpoena was not issued by a
court, the disobedience thereto shall be punished in accordance with
the applicable law or Rule.
The contempt provision of Rule 21 expressly penalizes the unwarranted
failure to obey a subpoena (whether ad testificandum or duces tecum) as
contempt of court. In contrast, the Rules of Procedure of the Senate
and the Rules of the Blue Ribbon Committee cover only the following
acts of a witness before it: disobedience of any committee order
including refusal to produce documents pursuant to a subpoena duces
tecum, refusal to be sworn or to testify or to answer a proper question
and giving of false or evasive testimony. chanroblesvirtualawlibrary
Limited
Scope Of Power To Punish For Contempt
In relation to legislative investigations, the contempt power of
Congress or its committees is recognized as an essential and
appropriate auxiliary to the legislative function.[19] However, the
power to punish for contempt is not limitless. It must be used
sparingly with caution, restraint, judiciousness, deliberation and due
regard to the provisions of the law and the constitutional rights of
the individual.[20] Strict compliance with procedural guidelines
governing the contempt power is mandatory.[21]
Pursuant to the Rules of Procedure of the Senate and the Rules of the
Blue Ribbon Committee, the proper subject of the contempt power is “any
witness before” the concerned committee(s) of the Senate. This means
that the witness must be in attendance or physically present at the
legislative inquiry. It is in this context (and this context alone)
that the respective provisions of the Rules of Procedure of the Senate
and the Rules of the Blue Ribbon Committee speak of the witness’s
disobedience of any committee order, refusal to be sworn or to testify
or to answer a proper question and giving of false or evasive
testimony. Likewise, it is only in accordance with such premise that a
witness may be ordered detained.
In this case, Neri was not before the respondent Committees. That was
why respondent Committees ordered his arrest. Indeed, the subpoena ad
testificandum issued to Neri commanded him to appear and testify before
the Blue Ribbon Committee on November 20, 2007. The December 2, 2007
show cause order was issued because he “failed to appear” in the
November 20, 2007 hearing while the January 30, 2008 arrest order was
issued on account of his “failure to appear and testify.”chanroblesvirtualawlibrary
Respondent Committees try to downplay the nature of their contempt
power as “coercive, not punitive.” However, the language of the Rules
of Procedure of the Senate and the Rules of the Blue Ribbon Committee
indicates otherwise. The respective provisions on contempt identically
state that respondent Committees “may punish for contempt.” Thus, the
contempt power of respondent Committees is meant as a punishment, not
merely as an instrument of coercion. And something which inflicts a
punishment or penalty is punitive.[22]
Moreover, while the contempt power of the legislature is sui
generis,[23] it is analogous to that exercised by courts of
justice.[24] As a rule, proceedings against a purported contemnor are
commonly treated as criminal in nature.[25] This being so, the order
holding Neri in contempt for his alleged failure or refusal to
obey a subpoena ad testificandum notwithstanding the absence of duly
promulgated rules of procedure on that matter was tantamount to an ex
post facto act.
The power to declare a person in contempt has serious implications on
the rights of the supposed contemnor, particularly on his liberty.
Thus, when a committee rule relates to a matter of such importance, it
must be strictly observed.[26]
A
Final Word
The hands that wield the power of legislative investigations are
powerful. Section 21, Article VI of the Constitution cushions the
impact by providing substantive as well as procedural limitations.
Unfortunately, in Machiavellian fashion, respondent Committees
disregarded the procedural safeguards purportedly in the name of truth
and good governance. In so doing, they dealt a devious blow not only on
Neri but also on our cherished traditions of liberty.
Accordingly, I vote to GRANT the petition.
RENATO
C. CORONA
Associate Justice
Footnotes: chanrobles virtual law library
chanrobles virtual law library
[1]
Arnault v. Nazareno, 87 Phil. 29 (1950), Justice Pedro Tuason,
dissenting.
[2] McNabb v. United States, 318 U.S. 332 (1943).
[3] Amsterdam, Anthony G., Perspectives on the Fourth Amendment,
58 Minn. L. Rev. 349, 354 (1973).
[4] The lead committee in the joint legislative inquiry.
[5] Cruz, Isagani A., Philippine Political Law, 2002 edition,
Central Lawbook Publishing Co., Inc., p. 163.
[6] Id.
[7] Id., pp. 163-164.
[8] Arnault v. Nazareno, supra note 1.
[9] Bernas S.J., Joaquin G., The 1987 Constitution Of The
Republic Of The Philippines: A Commentary, 2003 edition, Rex Bookstore,
Inc., p. 737.
[10] Id., p. 740.
[11] Id.
[12] Id., pp. 740-741.
[13] Tribe, Lawrence H., I American Constitutional Law 794-795
(2000).
[14] Webster’s Third New International Dictionary, 1993 edition,
p. 616.
[15] Id., p. 121.
[16] Id. The principle was further explained in Arnault v.
Balagtas (97 Phil. 358 [1955]): chanrobles virtual law library
The
principle that Congress or any of its bodies has the power to punish
recalcitrant witnesses is founded upon reason and policy. Said power
must be considered implied or incidental to the exercise of legislative
power. How could a legislative body obtain the knowledge and
information or, which to base intended legislation if it cannot require
and compel the disclosure of such knowledge and information, if it is
impotent to punish a defiance of its power and authority? When the
framers of the Constitution adopted the principle of separation of
powers, making each branch supreme within the realm of its respective
authority, it must have intended each department's authority to be full
and complete, independently of the other's authority or power. And how
could the authority and power become complete if for every act of
refusal, every act of defiance, every act of contumacy against it, the
legislative body must resort to the judicial department for the
appropriate remedy, because it is impotent by itself to punish or deal
therewith, with the affronts committed against its authority or dignity (emphasis supplied)
[17] Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete, G.R. No. L-72492, 05 November
1987, 155 SCRA 421.
[18] G.R. Nos. 169777/169659/169660/169667/169834/171246, 20
April 2006.
[19] Arnault v. Nazareno, supra; Senate v. Ermita, supra.
[20] Regalado v. Go, G.R. No. 167988, February 6, 2007.
[21] Id.
[22] See Black’s Law Dictionary, 4th edition, p. 1399.
[23] Negros Oriental II Electric Cooperative, Inc. v.
Sangguniang Panlungsod of Dumaguete, supra.
[24] Anderson v. Dunn, 19. U.S. [6 Wheat.] 204 (1821) cited
in Sabio v. Gordon, G.R. Nos. 174340/ 174318/174177, 17 October 2006.
[25] Regalado v. Go, supra.
[26] Yellin v. United States, 374 U.S. 109; Gojack v. United
States, 384 U.S. 702 (1966).
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