ON DISCLOSURE AND SECRECY, SEPARATION OF POWERS, AND THE LEGISLATIVE POWER OF INQUIRY
After Justice Teresita de Castro’s decision, it is now time to summarize Chief Justice Reynato Puno’s whopping 100+ page dissenting opinion on Neri v. Ermita.
Justice Puno first discussed the doctrine of executive privilege as “tension between disclosure and secrecy in a democracy.” He quoted several provisions in the 1987 Philippine Constitution regarding disclosure.
On Secrecy and Disclosure
* Article III, Section 7: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
* Article II, Section 24: The State recognizes the vital role of communication and information in nation-building.
* Article II, Section 28: Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
* Article XI, Section 1: Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.
* Article XII, Section 21: Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public.
(In his dissenting opinion on the Web, there was a typo, as National Economy and Patrimony is Article XII, not Article XI as stated in the opinion:
A more specific provision on availability of information is found in Section 21 of Article XI, National Economy and Patrimony, which states, viz:
Sec. 21. Foreign loans may be incurred in accordance with law and the regulation of the monetary authority. Information on foreign laws obtained or guaranteed by the Government shall be made available to the public.
There is no Section 21 in Article XI. He must really be that disappointed with his colleagues to commit that typo.)
* Article XVI, Section 10: The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.
Puno believes that disclosure and access to information allow the people to be involved in the political system, quoting Thomas Jefferson: “if a nation expects to be ignorant and free in a state of civilization, it expects what never was and will never be.”
On Separation of Powers
After that, he begins outlining the principle of the separation of powers and how the government operates. He says that the powers are separated to avert tyranny, but this separation is not absolute or else government will not function. “It enjoins upon its branches separateness but interdependence, and autonomy but reciprocity,” Puno referring to our Constitution. The delineation between the three branches is fashioned on “common sense” and “necessities of governmental coordination.” He then quoted Angara v. Electoral Commission [63 Phil. 139 (1936)]:
Each department of the government has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely restrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.
The Power of the Legislative to Investigate
Next on his discussion is the power of the legislative branch to investigate and cite witnesses in contempt. According to Puno, the legislature has the power to look into administrative actions and decisions, the exercise of administrative actions under the acts of the Congress, and to look into compliance with the intent of the laws.
Also, this power is necessary so that the Congress can “enhance its understanding of and influence over implementation of legislation it has enacted.” It can exercise oversight through review or investigation of actions made by the executive department. One means to exercise oversight is legislation and power of investigation. Congress investigates so that it can craft new or amend laws.
Chief Justice Puno cited the applicable provisions for the legislature’s power to investigate in the 1973 and 1987 Charters (there was no explicit provision in the 1935 Constitution).
He outlined two requirements for the valid exercise of the power of investigation:
1. It must be in aid of legislation. The power to investigate covers everything that concerns the administration of existing laws, and to propose new ones. The “improper motives” of members of congressional committees does not invalidate an investigation, as long as it is in aid of legislation. The legislature can only investigate areas in which it may legislate or appropriate (ie, budget). The judiciary has no authority to intervene on the basis of motives alone, even if the exercise is purely for exposure (pa-pogi), as long as the Congress “acts in pursuance of its constitutional power of investigation.”
He cited Arnault v. Nazareno [87 Phil. 29 (1950)] to support his assertion. In that case, Jean Arnault was a witness to a Senate investigation of certain real estate deals, which was allegedly disadvantageous to the government (Php 5 million pesos, sounds familiar). Arnault refused to answer a question, so he was cited into contempt. He filed for a petition of habeas corpus, asserting that the Senate had no power to cite him in contempt, that the answer to the question was not pertinent to the investigation, that it would not serve any intended legislation, and it would be tantamount to self-incrimination.
The Supreme Court at that time upheld the Senate’s power to investigate the said deals (Buenavista and Tambobong Estates deal). The decision cited Senate Resolution 8 that created a special committee to investigate the deal: “It shall be the duty of the said Committee to determine whether the said purchase was honest, valid, and proper and whether the price involved in the deal was fair and just, the parties responsible therefor, and any other facts the Committee may deem proper in the premises…”
The Court contends that the Senate has the authority to investigate because:
a. The transaction involved public funds, and Congress is the guardian (it had the power of the purse, but not anymore under this regime-Arbet).
b. The deal involved agencies created by Congress and officers whose powers can be regulated and abolished by Congress.
c. Three bills were approved as a result of the investigation.
In conclusion, Justice Puno asserts that the power exercised by a legislative committee must be within the authority delegated to it and within the competence of Congress to bestow upon the committee.
2. The questions must be pertinent. The question itself is in the ultimate area of the investigation, “a usual and necessary stone in the arch of a bridge over which an investigation must go.” The Arnault case states the rule on pertinency.
a. The investigating committee has the power to require a witness to answer a question pertinent to that investigation.
b. Every question that is asked must be material or pertinent to the subject matter of the investigation.
c. The question’s materiality must be determined by its direct relation to the subject of the investigation, not by its indirect relation to any proposed or possible bills.
d. “The necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question.”
Arnault’s petition for habeas corpus was denied on the grounds that the question asked was material to the investigation, and is not self-incriminatory.