Saturday 17 November, 2018
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Congressional Investigations: The Good, The Bad and The Ugly

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“I’d rather go to jail…” was the audacious statement of former Customs Chief Nicanor Faeldon in an interview by Karen Davila in a recent episode of Headstart at ANC. Faeldon opted to go to jail once more a bit similar to that of his mutiny days rather than attend more legislative investigations on the alleged lapses of the Bureau of Customs pertaining to the shipment of 600 kilos of shabu from China. According to Faeldon, the constitutional rights of the resource persons are not being respected.

Nowadays we are being bombarded with legislative investigations. Notable inquiries at present are the following:

(1) The death of Kian Lloyd delos Santos, the 17-year old student who was killed in an anti-drug operation in Caloocan City on August 16, by the Senate Committee on Public Order and Illegal Drugs;

(2) The entry of 600 kilos of methamphetamine (shabu) from China to Manila, which allegedly slipped past the Bureau of Customs’ green lane that has relatively relaxed security checks compared to the yellow and red lanes last May – by the Senate Blue Ribbon Committee and by the House of Representatives Committee on Dangerous Drugs;

(3) The “mega shabu laboratory” in Virac, Catanduanes discovered last November 26, 2016, by the House of Representatives Committee on Dangerous Drugs;

(4) The status of the franchise applications and operations of Uber and Grab, by the Senate Committee on Public Services and the House of Representatives Committee on Metro Manila Development; and

(5) The yet to be started investigation on the alleged unexplained wealth of COMELEC Chairman Andy Bautista by the Senate Committee on Banks.

Any diligent law student or lawyer would readily know the constitutional basis and purpose of legislative investigations. In Senate vs. Eduardo Ermita, G.R. No. 169777, 20 April 2006, our Supreme Court articulated the salient points of the Congressional Power of Inquiry, to wit:

“The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution, which reads:

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.

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 legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which is not infrequently 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….

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. The matters, which may be a proper subject of legislation and those, which may be a proper subject of investigation, are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.”

The Good

The congressional power of inquiry is indeed very noble. The power is one of the congressional mechanisms by which the constitutional system of checks and balances is being carried out. In the practical sense, it is also one of the more, if not the most expeditious way of scrutinizing controversial and newsworthy executive actions without being bounded by technical rules of evidence, although the subject matter of inquiry may also be within the ambit of judicial review by our courts wherein strict evidentiary rules are always being followed not to mention the attendant infamous continuances and postponements.

Take for example the Senate investigation on the death of 17-year old Kian delos Santos. President Duterte time and time again pronounced before the media that he would take all the blame and responsibility that his police force should incur in the war against drugs. However, probably due to the immediate and pressing Senate investigation, the President took a 180-degree turn and condemned the acts of the police officials who were involved in the killing of Delos Santos.

Another worthy example is the House Committee investigation on the “mega shabu laboratory” discovered last year in Virac, Catanduanes. In the hearing conducted last August 10, House Committee members severely berated investigator PO2 Benjamin dela Rosa of Virac Provincial Police Office, the police officials of Virac PPO and that of the PNP Regional Office 5 for the hasty filing of the second amended criminal complaint in connection with the mega shabu laboratory. Allegedly attendant to the filing was the attempt to exclude names of powerful persons in the Province of Catanduanes. In the same hearing, PO2 Dela Rosa admitted that he was then a former employee of Catanduanes Governor Joseph Cua at the Office of the Provincial Governor. And by reason of the resolute criticisms and displeasure of the House Committee members against the second amended criminal complaint, the Regional Director of PNP Region 5, Chief Supt. Antonio Gardiola Jr., was forced to commit before the House Committee on the withdrawal of the highly questionable complaint. Said complaint was filed also upon the behest of Gardiola’s predecessor Ret. Chief Supt. Melvin Ramon Buenafe, a brother of Governor Cua in the Freemasons.

The Bad

Absent any abuse or misuse of the congressional power of inquiry, some congressional investigations may sometimes go bad. Bad in the sense that at times, it is the public that bears the brunt of the repercussions.

Uber and Grab brought a breathe of fresh air and a sigh of relief to many that instead of braving our way out in the streets to hail for traditional taxi-cabs bearing and cursing at the hassles whatever the pursuit entails in the process, we have now a commute lifestyle akin to that of a chauffeured-driven vehicle service. But in the midst of the Senate investigation, the LTFRB suspended Uber’s operation for a month and imposed upon it a very massive fine. The initial effects of the suspension were harsh to the riding public. Grab’s booking was hard to come by and its fare got a bit hefty. All these could have been avoided if all those concerned, whether in the executive or in the legislative, were proactive enough to have anticipated by regulation or by legislation the sui generis nature of Uber and Grab prior to all the fiasco.

The Ugly

Congressional investigations can also at times get ugly. Abuse and misuse of the power is evident in some investigations. Accusations and subpoenas may sometimes be hurled and issued against persons whose implications are founded on hearsays, double hearsays, speculations and conjectures such as the one against Presidential Son Paulo Duterte. Furthermore, some investigations may have unnecessarily scorned “a few good men” in government service due to political reasons.

I had the chance to interview Atty. Alvin Ebreo, the Director of Legal Affairs of the Bureau of Customs, whom the good senator Panfilo Lacson, Jr. accused of having received bribes along with Former BOC Chief Nicanor Faeldon and other Customs officials. His statements are quite thought provoking in relation to the subject matter at hand that I find appropriate to quote verbatim:

Let me be clear on this, I deny the accusation made by Senator Panfilo Lacson, Sr. during his privilege speech that I am a participant or beneficiary of the alleged TARA System in the Bureau of Customs.

It is exactly for this illegal practice that I have sworn to fight why I joined Commissioner Nicanor Faeldon at the Bureau. This practice has been deeply ingrained for so long a time that no less than the total cooperation of the whole government and all the stakeholders is necessary to uproot it from this revenue collection agency.

THE ACCUSATION OF SENATOR PANFILO LACSON, SR.

The alleged sources of his information: unnamed high-ranking official and middle-grade employees of the Bureau, hence, cannot be independently verified. The fact that his informants are part of the corrupt Bureau, the veracity and truthfulness of the information is totally suspect. The same informants may have been adversely affected by the reform efforts led by Commissioner Faeldon and they want to recover the position or status they long held so that they could continue to benefit on the corrupt system they are ferociously holding on to. Without any real person coming out to support the accusation with personal knowledge, the “expose” of Senator Lacson has no probative value, hence good only for the tabloids where his trash talk truly belongs.

THE TARA SYSTEM

This corrupt system thrives on the inclination of the importers and brokers to pay the lowest amount of tariff and customs duties possible on every importation. They are willing to shell out an amount of bribe in exchange for the speedy release of imported goods while still paying less than the legal tariff and customs duties, thus minimizing expense and maximizing profit. For the TARA system to work, an official or employee must have an official direct participation in the processing and release of the imported goods. This means that the same official or employee has the power to delay the release of the shipments and coerce the broker or importer on the inevitable payment of additional demurrage fees on long-staying goods.

My office, the Legal Service, is not at all involved in the processing or release of shipments, hence there is no appeal or leg to stand on to partake of this illegal practice. In other words, there is no compelling reason for an importer or broker to bribe an official or employee under the Legal Service since it has no power to decide whether a shipment should be processed or released at the earliest time possible. While it is true that shipments, which are subject to seizure or forfeiture proceedings may possibly reach the Legal Service by way of review or appeal, the very purpose of the TARA system, which is the speedy release of importation from customs jurisdiction would long have been rendered untenable.

The way it is being played out in the open, a very effective legislative investigation that would pressure, sway or affect executive actions for the greater good had always been with the active and extensive participation of mainstream media and of social media that would spark and snowball the interest of the citizenry including that of the Netizens. Indeed, the most effective of legislative investigations is akin to the concept of Total War by General Erich von Ludendorff, usually thought of as Carl von Clausewitz’s. Mobilization of all machinery and resources – within or without the limelight of the investigation – in order to achieve stately objectives, is a must. Ludendorff and Clausewitz combined, in order to achieve complete victory in war, all civilian, economic, military and government resources must be mobilized. The interesting idea of Total War brings me to my article next week on dissecting President Duterte’s statesmanship: The Art of War: Absolute, Real and Total War.

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