Are the Senate investigation rules valid?

MANILA, Philippines—Neri vs Senate Committee on Accountability: (March 25, 2008) took up two issues: the scope of executive privilege and the validity of the Senate order holding Secretary Romulo Neri in contempt. Discussing the first topic last Sunday, I opined that the nine-member Supreme Court majority failed to check presidential abuse; worse, it imprudently expanded executive privilege to hide wrongdoings.

Contempt and arrest order. Now, I will take up the second issue. Recall that during his testimony for 11 hours on Sept. 26, 2007, Secretary Neri refused to answer three questions implicating President Macapagal-Arroyo to the ZTE-NBN mess. To justify Neri’s intransigence, Executive Secretary Eduardo Ermita invoked executive privilege.

Because Neri failed to heed their invitation to attend subsequent hearings, the Senate Committees issued a “show cause letter” requiring him to explain why he should not be held in contempt. Deeming his explanation to be insufficient, the Committees issued the questioned order, dated Jan. 30, 2008, finding Neri in contempt and ordering his arrest and detention.

The Supreme Court, voting 10-5 (but 9-6 on the first issue), voided the contempt and arrest order because (1) Ermita’s invocation of executive privilege validly sealed Neri’s lips; (2) the Senate did not follow the procedures outlined in “Senate vs Ermita,” like the need to indicate in the invitation or subpoena the proposed legislation that prompted the inquiry and the general questions to be asked; (3) only a minority of the members of the committees were present when the order was deliberated upon and the absentees were just asked to sign the order; (4) the “Senate Rules of Procedure Governing Inquiries in Aid of Legislation” were not duly-published; and (5) the Committees “did not first pass upon the claim of executive privilege and inform petitioner of their ruling.”

Continuing legislative body: Other than quoting the one-paragraph argument of the solicitor general, the decision did not explain why publication was essential to the validity of the rules. However, Justice Antonio T. Carpio, who swelled the majority to 10 on this issue, discussed why non-publication “renders the Rules of Procedure void.”

To begin with, Sec. 21 of Article VI of the Constitution provides that a Senate committee “may conduct inquiries in aid of legislation in accordance with duly published rules of procedure.” The Constitution did not say how the rules should be published. But the Senate rules themselves state that they “shall take effect seven days after publication in two newspapers of general circulation.” Thus, their publication in the Senate website and their availability in pamphlet form are not sufficient compliance with the rules.

In 2006, the rules were published in the Inquirer and another daily, for the 13th Congress. But they have not been republished for the current 14th Congress that began in 2007. The Senate however argues that there is no need to republish, because “Nazareno vs Arnault” (July 18, 1950) has held that, unlike the House of Representatives, the Senate was a continuing body.

Justice Carpio, however, cogently observes that “Nazareno” was decided under the 1935 Constitution when only eight of the 24 senators were elected every two years such that 16 senators constituting two-thirds of the Senate “always continued into the next Congress.” Since only a majority or 13 of the 24 members were needed to constitute a quorum and do business, the Senate was deemed a continuing body.

In contrast, under the 1987 Constitution, the term of 12 of the 24 senators expired every three years “leaving less than a majority to continue into the next Congress.” Thus, the present Senate cannot be deemed a continuing body. Ergo, the rules must be republished after the expiration of the term of 12 senators.

The foregoing distinction may appear hair-splitting but it is essential to due process and the rule of law. The Senate Rules of Procedure put at risk the liberty of witnesses and resource persons during investigations. Hence, the Constitution and the rules must be strictly construed in favor of the people and against the Senate.

Prudent to comply. With 10 justices concurring on this issue, it may be prudent for the Senate to republish its rules immediately as it did in previous years, with perhaps an amendment that in the future, continuous publication in its website—no longer in two newspapers—shall be sufficient.

The dispositive portion of the ponencia did not annul the Senate rules. Hence, they remain valid. It merely nullified the order citing Neri in contempt. On reconsideration, the Court may remember to nullify them. That would be another setback for the Senate. But with a republication, reconsideration would be concentrated on executive privilege in which the Senate is rock-strong.

May I also suggest compliance with the procedures outlined in “Senate vs Ermita.” These are rooted on fairness and due process, and are easy to follow. By complying, the Senate would show its adherence to libertarian ideals.

The other item on how the senators? signatures were procured refers to internal procedures that jurisprudence uniformly holds to be within the sole discretion of Congress. The Court allows justices who are physically absent from its session to cast their votes and even to submit written opinions. How now can the Court insist on correcting the Senate without damning its own processes?

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