RESPECT FOR ONE.doc

7/28/2019 RESPECT FOR ONE.doc

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UNIVERSITY OF BATANGASCollege of Law

Since the Senate Rules of Procedure in Aid of Legislation is silent on this

right, it lends itself to a situation whereby a witness in the course of his testimony

can libel a mere resource person invited to appear before the committee, and the

hapless resource person, who now finds himself as the accused, would have no

right to examine or cross-examine his libeler.

It is to be noted that the internal rules of the Committees expressly

deprives the witness to confront other witnesses against him. Such rule states

that: A witness and his counsel shall not have the right to examine or cross-

examine any witness before the committee or subcommittee but may ask leave

to submit to the presiding officer proposed questions which the latter may

propound if, in his opinion, the same are necessary for clarificatory purposes.

As such, the resource persons right to defend himself on the spot is curtailed. If

at all he can exercise it, he does so not because he is entitled to it but by the

grace of the chairman who may even disallow it.

C. Right to Dignity and Self-Respect

The right to dignity and self respect is an inherent right of all persons. The

express constitutional duty imposed on Congress to respect the rights of the

witnesses appears at first impression to refer to the rights of witnesses not to be

abused, insulted, harassed, or embarrassed. Section 11, Article II of the 1987


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President, such as in the area of military and foreign relations. Consistent with

the doctrine of separation of powers, the information relating to these powers

may enjoy greater confidentiality than others. Thus, presidential conversations,

correspondences, or discussions during closed-door Cabinet meetings, like the

internal deliberations of the Supreme Court and other collegiate courts, or

executive sessions of either House of Congress, are recognized as confidential.

This kind of information cannot be pried open by co-equal branch of government.

In the case of Neri vs Senate Committee, the Court ruled that the

communications elicited by the three (3) questions of the Committee are covered

by the presidential communications privilege. The elements of presidential

communications privilege are present: 1) the communications relate to a

"quintessential and non-delegable power" of the President; 2) the

communications are "received" by a close advisor of the President; and 3) there

is no adequate showing of a compelling need that would justify the limitation of

the privilege and of the unavailability of the information elsewhere by an

appropriate investigating authority. Hence Sec. Neri cannot be compelled to

answer.


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E. Judicial Privilege

In the right to invoke judicial privilege, the members of the Supreme Court

are exempt from the power of inquiry. In comparison with the Presidents

executive privilege, judicial power is vested in a collegial body; hence, each

member thereof is exempt on the basis not only of separation of powers but also

on the fiscal autonomy and the constitutional independence of the judiciary

The rules on confidentiality will enable the Members of the Court to freely

discuss the issues without fear of criticism for holding unpopular positions or fear

of humiliation for ones comments. The privilege against disclosure of these kinds

of information/communication is known as deliberative process privilege,

involving as it does the deliberative process of reaching a decision. Written

advice from a variety of individuals is an important element of the governments

decision-making process and that the interchange of advice could be stifled if

courts forced the government to disclose those recommendations; the privilege

is intended to prevent the chilling of deliberative communications.

3. How are the rights of the persons appearing in congressional

investigation, as mandated in the Constitution, being safeguarded?

Section 21, Article VI of the Constitution limits the power of the Senate or

any of its Committees in conducting inquiries in aid of legislation to safeguard the


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rights of the resource persons. Before the congress may exercise its power of

inquiry, it must do so in accordance with its duly published rules of procedure and

the rights of persons appearing in or affected by such inquiries must be

respected.

3.1 Substantial Compliance

The Senate should first pass and publish its Rules of Procedure

Governing Inquiries in Aid of Legislation that will constitute as de facto standing

authorization for it to conduct investigations or inquiries in aid of legislation and

provide for the scope and extent of such investigations. And the questions under

inquiry must be related to a valid legislative purposes and be within the

jurisdiction of the particular committee.

3.2 Procedural Compliance

The requisite of publication of the rules mandated by the Constitution is

intended to satisfy the basic requirements of due process. In the case of Neri vs

Senate, the Court ruled that the publication of the Rules of Procedure in the

website of the Senate, or in pamphlet form available at the Senate, is not

sufficient under the Taada v. Tuvera ruling which requires publication either in

the Official Gazette or in a newspaper of general circulation. Publication in

accordance with Taada is mandatory to comply with the due process


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requirement because the Rules of Procedure put a person's liberty at risk. Due

process requires that "fair notice" be given to citizens before rules that put their

liberty at risk take effect.

4. Would the observance of the rights of the person appearing in senateinvestigation in effect curtail the right of the public to information throughsenate investigation?

No. While Congress is composed of representatives elected by the

people, it does not follow, except in a highly qualified sense, that in every

exercise of its power of inquiry, the people are exercising their right to

information. T he rights to public information cannot be equated to the right of

Congress, as representatives elected by the people, to obtain information in aid

of legislation.

A congressional committee's right to inquire is subject to all relevant

limitations placed by the Constitution on governmental action, including 'the

relevant limitations of the Bill of Rights. The critical element is the existence of,

and the weight to be ascribed to, the interest of the Congress in demanding

disclosures from an unwilling witness.

4.1How can the two rights, i.e. rights of the person appearing insenate investigation and the right of the Congress to informationin aid of legislation, be harmonized?


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The rights of the person appearing in congressional investigation and the

right of the public to information through Congress in aid of legislation can be

harmonized by striking a balance to the power of the Senate in conducting its

investigation in aid of legislation and the Constitutional right of the persons appearing

before the congress.

To balance the two rival rights, Congress, in all stages of inquiry, must accord

due process in their treatment of witnesses consistent with this right. If a charge of

wrongdoing is made during a privilege speech, it is imperative for legislators in the

interest of fairness to first establish a prima facie case and then show connection of

the inquiry to the legislative process. The witness should not be required to prove his

innocence, and all inquiries must be made in aid of legislation.

The power of legislative inquiry is not absolute or unlimited. There are certain

requisites before this power can be exercised. First, the investigation must be in aid

of legislation. Second, the investigation must be in accordance with the duly

published rules of procedure of the investigating body. And third, the rights of

persons appearing in or affected by such inquiries shall be respected. The inquiry

itself might not properly be in aid of legislation, hence, beyond the constitutional

power of Congress.


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Conclusion

1. The Legislature is the branch of the government tasked with the

enactment of laws that will govern the land. In the performance of this

task, it is empowered with the right to summon resource persons to

enlighten the body in crafting good laws. It can compel the attendance of

any persons to aid in legislation with its contempt power.

2. Section 21, Article VI of the 1987 Constitution expressly provides the

power of the Congress to conduct inquiries or investigations in aid of

legislation. The same provision also mandates that the inquiry should be

in accordance with its duly published rules of procedure and the rights of

persons appearing before them must be respected.

3. Congressional investigations often go out of bounds in pursuit of its duty to

conduct investigations in aid of legislation. As a result, the rights of the

resource persons appearing before the legislators are sometimes

trampled upon whether intentionally or unintentionally.

4. Such rights of the resource persons are limited in the Senate Rules of

Procedure Governing Inquiries in Aid of Legislation. The Rule only

provides for the right to counsel and the right against self-incrimination.


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5. Other than those expressly provided in the Senate Rules of Procedure in

Aid of Legislation, the persons appearing before congressional

investigations are not keen to their constitutional rights. There is a need to

address the other constitutional rights of the resource persons to fully

comply with the mandate of the Constitution.

6. The other Constitutional rights of the resource persons are supplemented

under case laws to bolster the mandate of the Constitution to respect the

rights of these persons. They are: executive privilege, right to privacy, right

to confront witnesses against him and right to dignity and self-respect.

Recommendation

For the Congress, particularly the Senate

1. To limit itself to the purpose of the investigation which is to recommend

appropriate legislation.

2. To amend the Senate Rules of Procedure Governing Inquiries in Aid of

Legislation to expressly provide, in detail, the rights of the persons

appearing before them specifically incorporating the other Constitutionalrights of the resource persons such as: right to privacy, right to confront


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witnesses against him, right to dignity and self-respect, executive privilege

and judicial privilege.

The present Senate Rules of Procedure Governing Inquiries in Aid of

Legislation only provides for the right to counsel and the right against self-

incrimination which is wanting of substantial compliance with the express

mandate of the Constitution which states that the rights of persons appearing in

or affected by such inquiries shall be respected.

Thus, suppletory rights under the Constitution must be incorporated under

the present Senate Rules of Procedure in Inquiries to fully satisfy the

Constitutional mandate.

The Rules must be amended accordingly, incorporating the rights of the

resource person, as follows:


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Section xxx. Rights of Witness

Present Rules of Procedure Proposed Amendment a) Right to Counsel

(1) At every hearing, public or executive, every witness shall beaccorded the right of having acounsel of his own choice; and (2) Except as provided in theInternal Rules of the Committeeon Ethics and Privileges, the

participation of counsel during the course of any hearing and while the witness is testifying shall be limited to advising said witness as to his legal rights.Counsel shall not be permitted toengage in oral argument with theCommittee, but shall confine hisactivity to the area of legal advice to his client.

b) Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a question which tends toelicit an answer that will incriminate him is propounded to

him. However, he may offer toanswer any question in anexecutive session.

No person can refuse to

a) Right to Counsel

(1) At every hearing, public or executive, every witness shall beaccorded the right of having acounsel of his own choice; and (2) Except as provided in theInternal Rules of the Committeeon Ethics and Privileges, the

participation of counsel during the course of any hearing and while the witness is testifying shall be limited to advising said witness as to his legal rights.However, the Counsel can be

permitted to engage in oral argument with the Committee inclarifying the right of his client being invoked.

b) Privilege Against Self-Incrimination

A witness can invoke his right against self-incrimination only when a question which tends toelicit an answer that will incriminate him is propounded to

him. However, he may offer toanswer any question in anexecutive session.

No person can refuse to


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testify or be placed under oath or affirmation or answer questions

before an incriminatory questionis asked. His invocation of suchright does not by itself excusehim from his duty to givetestimony.

In such a case, theCommittee, by a majority vote of the members present therebeing a quorum, shall determinewhether the right has been

properly invoked. If theCommittee decides otherwise, it shall resume its investigationand the question or questions

previously refused to beanswered shall be repeated tothe witness. If the latter continues to refuse to answer

the question, the Committee may punish him for contempt for contumacious conduct.

testify or be placed under oath or affirmation or answer questions

before an incriminatory questionis asked. His invocation of suchright does not by itself excusehim from his duty to givetestimony.

In such a case, theCommittee, by a majority vote of the members present there being a quorum, shall determinewhether the right has been

properly invoked. If theCommittee decides otherwise, it shall resume its investigation and the question or questions

previously refused to beanswered shall be repeated tothe witness. If the latter continues to refuse to answer the

question, the Committee may punish him for contempt for contumacious conduct.

c) Right to Privacy

A witness may invoke hisright to privacy when the focus of the inquiry substantially infringed his privacy such as when theinformation sought is not related to a subject of overriding or compelling state interest, and when the intrusion overlaps tohis personal capacity and private


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relations amounting tounreasonable government

intrusion.

d) Right to Confront Witnessesagainst him

When another witness/esimpute/s to the present witness acrime or offense, the latter shall be afforded the opportunity toconfront the witness against himby directly clarifying thetestimony and shall be given thechance to defend himself.

e) Right to Dignity and Self-Respect

The witness shall be freefrom abuse, insult, harassment,

or embarrassment before thecongressional investigation. Hisright to dignity and self-respect shall be respected at all times.Offensive or improper languageshall not be used to address thewitness.

f) Executive Privilege

Whenever the witness is ahigh-level executive branchofficials or considered as closeadvisor of the president and thesubject of inquiry relates to


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presidential conversations,correspondences, discussions

during closed-door Cabinet meetings, or communicationsrelating to a "quintessential and non-delegable power" of thePresident, the witness shall havethe right to refuse to answer such inquiry; provided that thereis no adequate showing of acompelling need to justify thelimitation of the privilege and of the unavailability of theinformation elsewhere by anappropriate investigating autho-rity.

g) Judicial PrivilegeMembers of the Supreme Court are exempt from the power of inquiry. Court deliberations are

confidential and extend todocuments and other commu-nications which are part of or arerelated to the deliberative

process. The deliberative process privilege refers also of protectionfrom disclosure documentsreflecting advisory opinions,recommendations and deli-berations that are component

parts of the process for formulating governmental deci-sions and policies.


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For Resource Persons summoned in Congressional Investigations

1. To review their rights under the Rules of Procedure Governing Inquiries in

Aid of Legislation as well as the applicable and supplemental

Constitutional Rights before attending the investigations so as to suppress

if not to avoid the abuses or lapses of the legislators.

For Future Researchers

1. To look for other supplemental rights that can be incorporated in the Rules

of Procedure Governing Inquiries in Aid of Legislation to further protect the

rights of resource persons appearing before a congressional investigation.


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BIBLIOGRAPHY

A. Primary Sources

Laws

1973 Philippine Constitution.

1987 Philippine Constitution.

Rules

Rules of Court.

Rules of Procedure in Aid of Legislation.

Rules of the Senate Blue Ribbon Committee.

Rules of the Senate Committee on Justice and Human Rights.

Senate Rules.

Cases

Arnault v. Leon Nazareno, et al, 87 Phil 29 (1950).

Barenblatt v. United States, 360 U. S. 109.

Bengzon Jr. vs Senate Blue Ribbon Committee, GR 89914, Nov.20, 1991.

Garcillano vs House of Representatives, G.R. 170338, Dec. 23, 2008.

Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963).

Gojack v. United States, 86 S. Ct. 1689 (1966).

Kilbourn v. Thompson, 103 U.S. 168 (1880).

McGrain v. Daugherty, 273 U.S. 135 (1927).

Neri vs. Senate Committee, GR 180643, Mar. 25, 2008.

Pimentel, Jr. Vs. Senate Committee, G.R. 187714 March 8, 2011.


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Pobre vs Defensor-Santiago (597 SCRA 1).

Romero II, v.. Senator Jinggoy E. Estrada, G.R. 174105 Apr. 2, 2009.

Sabio v. Gordon GR 174340. Oct 17, 2006, 504 SCRA 704.

Schneider v. State, 308 U. S. 147.

Senate v. Ermita, GR No, 169777, April 209, 2006, 288 SCRA 1.

Sinclair v. United States, 279 U.S. 263 (1929).

Standard Chartered Bank v. Senate Committee on Banks.

United States v. Rumely, 345 U.S. 41 (1953).

US vs Ballin, 144 US 1 (1891).

Watkins v. US, 354 US 178 (1957).

B. Secondary Sources

Books

Bernas, Joaquin The 1987 Constitution Of The Rep. of the Phils (1996).Blacks Law Dictionary (6th ed., 1991) at 569-570.

Brown, Dan Digital Fortress, St. Martins Press, 1998.

Cruz, Isagani A. Philippine Political Law, (Central Publishing Co., Inc.,

2002).

Nachura, Antonio E.B. Outline in Political Law, (VJ graphic Arts, Inc.

2009).

Read, Horace E. et. al., Cases and Other Materials in Legislation (1959).

Rivera, Juan, The Congress of the Philippines (1962).

Journals

Brillantes, Love Joy Cecilia C. A Survey of the Developments on thePower of Inquiry in the Philippine Setting, UST Law Review, Vol. LI, AY2006-2007.


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Lopez , Lemuel D. The Right to Privacy In Inquiries In Aid Of Legislation,

Philippine Law Journal, 2003.

Schwarts, B. Executive Privilege and Congressional Investigatory Power,Vol. 47, California Law Review 3.

Stamps, Norman L. A Comparative Study of Legislative Investigations:England, France, and Weimar Germany, Journal of Politics 14(4), 1952.

The Rights of a Witness Before a Congressional Committee, FordhamLaw Review, Volume 29, Issue 2, (1960).

Yu, Vicente Paolo B. Balancing Power and Rights: A short Essay on thePower of Congressional Investigation and Kuratong Baleleng, PhilippineLaw Journal, 1996.

Newspapers

A day at the circus, Editorial, The Philippine Star, Mar. 5, 2011.

In aid of what?, People's Journal, Aug. 31, 2011.

Casayuran, Mario B. Hannah L. Torregoza and Rolly T. Carandang,Senate inquiries: An arena for revenge?, Manila Bulletin, May 10, 2011.

Gacutan , Hezel P. The Philippine Congress legislation or investigation,Manila Bulletin, Oct. 24, 2001.

Mendez, Christina Ex-PCSO execs invoke right vs self-incrimination, ThePhilippine Star, July 15, 2011.

Mercado, Juan L. Mercado: Sense of decency, Sun Star Cebu

newspaper, Feb. 13, 2011.

Articles


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Legislative Investigation, Macmillan Reference USA, 2000.

Macaspac, Macky The Right To Avoid Self-Incrimination: When Is It Fair For Corruption Suspects to Cite It and When Are They Hiding Behind It?,Philippine Public Transparency Reporting Project, 04 May 2011.

Puno, Reynato S. Legislative Investigations And The Right To Privacy,Lecture delivered, February 28, 2005 at the UP College of Law, thesecond of the Chief Justice Hilario G. Davide, Jr. Distinguished LectureSeries of 2005.pp2-3 citing 1Cortes, I., Constitutional Foundations of Privacy (1970).

Transcript of Records

Joint Committee Hearing of Committee on Accountability of Public Officersand Investigations (Blue Ribbon) and Committee on Justice and HumanRights, January 27, 2011.

Record of Senate Committee on Ethics and Privileges, 8-10 (16December 1987)

Websites

Arnel D. Mateo, Executive Privilege in the Philippines, Aug. 2,2008,http://parliamentarydebate.blogspot.com/2008/08/executive-privilege-inphilippines.html

http://www.senate.gov.ph/statistics.pdf

http://www.senate.gov.ph/committee/list.asp

Trillanes Senatorial Grandstanding should be reviewed!, Wordpress.com,

February 10, 2011.
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RESPECT FOR ONE.doc