Guingona is right on Napoles

09 October 2013

By Dean Tony La Viña

Should Janet Napoles be compelled to testify before the Senate Blue Ribbon Committee on the PDAF scam? Or is this unwise, given the fact that she, with others, have now been charged for plunder and other crimes before the Ombudsman?

Senator TG Guingona has invoked the Senate’s prerogative to call any witness before it for investigations in aid of legislation. He has argued that the Senate investigation on the pork-barrel fund scam would not be complete without the testimony of Napoles, and that he would not allow anyone to obstruct the bid of his committee to ferret out the truth.

Senate President Franklin Drilon, on the other hand, refused to sign the subpoena for the so-called “Pork Barrel Queen” in deference to the opinion of the Ombudsman Conchita Carpio Morales who earlier said that it would not be advisable for Napoles to come to the Senate. The Ombudsman later modified this to say that calling Napoles to testify is up to the collective wisdom to the Senate.

My understanding is that this issue will now be brought to a vote before the plenary of the Senate.

Let us examine the jurisprudential and legal support both sides have invoked to support their positions.

The power of the Senate to conduct legislative instigations is enshrined in Section 21 of Article VI of the Constitution. Explaining the rationale behind this authority, the pre-eminent constitutionalist, Fr. Joaquin Bernas, citing the landmark case of Arnault vs. Nazareno, said that “The power of legislative inquiry 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 legislation is intended to affect or change. Where the legislative body does not itself possess the requisite information—which is not infrequently true—recourse must be had to others who might possess it.”

On the other side, Justice Secretary De Lima took the cudgels for the Ombudsman by invoking the confidentiality rule under Rule 5 of the Ombudsman Rules of Procedure Rule 5 to the effect that “When circumstances so warrant and with due prudence, the Office of the Ombudsman may publicize in a fair and balanced manner the filing of a complaint, grievance or request for assistance, and the final resolution, decision or action taken thereon: Provided, however, that prior to such final action, no publicity shall be made of matters which may adversely affect national security or public interest, prejudice the safety of witnesses or the disposition of the case, x x x ” This supplements the Ombudsman Act (R.A. 6770) which allows the Ombudsman, under its rules and regulations, to determine what cases may not be made public.

In my view, the weight of authority seems to tilt heavily in favor of the power of the Senate to summon Janet Lim-Napoles to testify over and above the confidentiality rule being invoked by the Ombudsman and her supporters.

First. As pointed out by retired Chief Justice Reynato Puno, this constitutional right to investigate in aid of legislation cannot be defeated nor diminished by any confidentiality rule, which is only found in the rules of procedure of the Office of the Ombudsman. An administrative rule can never negate a constitutional grant of power. Indeed in the hierarchy of laws, the Constitution prevails over a mere rule of procedure of an administrative body.

Second. The weight of jurisprudence also veers decidedly in favor of the importance of Senate investigations over other kinds investigations, be it judicial or quasi-judicial. The case of Standard Chartered Bank vs. Senate Committee on Banks, Financial Institutions and Currencies is instructive. Here, the Court categorically stated that the mere filing of a criminal or an administrative complaint before a court or quasi-judicial body should not automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint.

Third, as a consequence of the previous arguments, a Senate decision that emasculates its own authority will be precedent for other cases. If Napoles is not subpoenaed, others in the same category (those where charges have been filed but no probably cause yet determines) should be excused from a Senate investigation. Napoles cannot be treated as if she is an exception to the rule. If she is not compelled to testify, then the Senate would have adopted what would be become an infamous Napoles rule that would effectively decapacitate Senate power and independence.

Finally, there is an important political function that the Senate investigation fulfills. The truth is that the results of the criminal process will probably not be known for five, maybe even up to 10 years with appeals expected if there are convictions. The Senate investigation can however be completed once Napoles testifies even if she invokes her right to self-incrimination, which is speculative at this juncture. Without her testimony, the Senate cannot come up with conclusions and a final report, as that would be unfair to Napoles. Basic fairness dictates that she should be given a chance to give her side. It does not matter if she says nothing when she appears as long as she has been invited and asked the right questions. Then the committee can make findings about her and not be unfair. Without subpoenaing her and asking her questions, the Senate cannot make conclusions about her role and therefore about anybody else.

Simply put, compel Napoles to testify before the Senate. The transcendental importance of the subject of investigation and the very high public interest in her testimony and the resultant conclusion of the Senate investigation far outweighs the concerns about her appearance.

Posted in pork barrel, senate

10 Responses to Guingona is right on Napoles

  1. October 9, 2013 at 3:41 pm
    manuel buencamino

    Guingona may be correct but what happens if Napoles hides behind her constitutional right against self-incrimination and refuses to say anything?

    • October 9, 2013 at 8:01 pm

      “It does not matter if she says nothing when she appears as long as she has been invited and asked the right questions.”

      • October 10, 2013 at 11:51 am
        manuel buencamino

        So the purpose of her appearance is for Guingona to make a point? If a car approaching me n the highway and crosses the center lane into my path should I move out or stand my ground that I have the right of way? Sometimes there are confrontations that are unnecessary, even when one is obviously right.

        • October 10, 2013 at 12:13 pm

          napoles has a choice, to answer or not to answer questions posed to her. if she refuses to answer certain questions on grounds of self-incrimination, that would be telling too …even if not as telling as actually telling.

          • October 10, 2013 at 5:29 pm
            ricelander

            What they really fear and they are not saying it is Napoles might confess to certain things that could complicate things for them too like… okay I am zipping my mouth hehehe!

          • October 10, 2013 at 5:30 pm
            manuel buencamino

            Ganun ba yun Angela, not telling is actually telling? If Napoles takes the right against self-incrimination and refuses to answer any questions then I, if I were Jinggoy, would show up at the hearing and ask Napoles the following questions :
            1. Is it true that you pay Sen Guingona a retainer of P10M a month? Napoles: I invoke my right against self-ncrimination.
            2. Is it true that you contributed P100M to Sen Guingona’s Senate campaign? Napoles: I invoke my right against self-incrimination.
            3. Is it true that Sen Guingona and Sen Escudero are having an affair and that you have made one of your condos available to them as their lovers’ nest? Napoles: I invoke my right against self-incrimination. :-)

        • October 10, 2013 at 12:16 pm
          Batang-genyo,Alah Eh

          @Gng Manuel,
          ang pagharap ni Napoles sa Senado ay isang “political prerogative” ng mga Mambabatas upang madinig at imbestigahan ang pangangailangang hakbang pam-politica o ng “hatol ng bayan”. Samantalang ang pag-harap po niya sa Ombudsman Morales ay isang pag-lilitis ng “Kataastasang Hukom ng Hustiyang criminal laban sa “people of the republic of the Philippines” upang harapin ang “pamdarambong” na isang mabigat na labag sa batas.

          ang aking pananao na sinko centimos.

          • October 10, 2013 at 5:23 pm
            manuel buencamino

            Gng Batang-genyo

            Alam ko.

  2. October 10, 2013 at 2:31 pm
    Bert

    This is a matter of which has top priority on matter of public and government interests for the good of our country. Is “in aid of legislation” more important than prosecuting criminals and so Napoles should be called and made to testify in the Senate in “aid of legislation” even if will jeopardizes government actions to prosecute criminals involve in the massive plunder of the public money? Is it correct to say that Guingona is justified to derail the function and objective of the Ombudsman merely because Guingona has the ‘mandate of the constitution’ to call witnesses “in aid of legislation”?

    I think that common sense and the public interests should be observed in this case.

    • October 10, 2013 at 3:10 pm
      Batang-genyo,Alah Eh

      @bert:-) Kung may tiwala po tayo sa integridad ng kasalukuyang Ombudsman at ang kalakaran ng systema ng Katarungan umiiral sa ating bansa, maaring ang Pamahalan ay mag-pahayag ng isang “security risk” ang saksi dahil ito ay isang High Profile ng crimen. Ito ay kapangyarihan ng isang matatag at wise policy ng Administration nagpapatupad ng batas. Di kailangan kumontra kung seguridad ng bansa or iilang matatas na oficial ng bansa ang naka taya.

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