G.R. No. 180643 – ROMULO L. NERI, in his capacity as Chairman of the Commission on Higher Education (CHED) and as former Director General of the National Economic and Development Authority versus SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE and SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY

 

                                Promulgated:

 

                                March 25, 2008

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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.”

 

        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.”

 

        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:

 

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:

 

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:

 

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:

 

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:

 

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:

 

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:

 

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.               

       

 

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.”

 

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.