Sunday, February 13, 2011

A Wounded General

The unfortunate death of former Chief of Staff General Angelo T. Reyes has caused the public to doubt whether Senate investigations are really designed to help make good laws or are they being used by some legislators as springboard for grandstanding and/or personal vendetta. When TV cameras start to roll and the hearings are simulcast live in a cable channel, is it really all about the right of the public to know on matters of national importance? It is my honest view that the recent legislative investigation on the ‘plea bargaining’ controversy has been poorly conducted by the Senate. Some senators were flagrantly grandstanding and obviously in a power-tripping mode.

Apparently, when the late Secretary was invited to appear in the Senate inquiries he had no inkling whatsoever that he was to be grilled by Senators Jinggoy Estrada and Antonio Trillianes. Going there, he was assured that the inquiry would center on the anomalous and highly irregular plea bargaining agreement entered into between former AFP comptroller General Carlos Garcia and the office of the Ombudsman. In fact, according to Retired Commodore Rex Robles in his eulogy last night recounted that the Secretary was not comfortable being called upon as source person in this matter. He was worried he could not contribute much. He attended otherwise, as we all have witnessed. Sitting there, he never thought he had more things to worry upon later on. Much to his chagrin, Senator Jinggoy Estrada had more business than just inviting him. That day had all the elements of a telenovela episode. Soap operas will never lose vengeance and retribution. It’s a plot we adopt even in real life. Even in the Senate, unfortunately.

Coming out in a wheelchair, the melodramatic mood slowly set in as the curious public patiently waited for what he had to say. Of course, the Senate is no neophyte when it comes to star or surprise witnesses. Remember Clarissa Ocampo? All had their time to shine. All had their time to tell their stories. And so it was Colonel George Rabusa’s time, a former budget officer of the AFP and incidentally, a kumpare of Secretary Reyes. Admittedly not coming with clean hands, this star witness declared that he did not only help in squandering the AFP funds but he also gained from it. And now that karma has found its way to his life, he was now ready to squeal it all out. After brief parliamentary incantations from the Senators, and a few sketches on the inner-workings on the AFP, the plea bargaining agreement which was on the agenda that day, was successfully set aside. Now, all were yakking on the rotten system of money squandering and funds conversions within the AFP. Out of a sudden the clueless general was being accused, among others, of accepting pabaon and pasalubong during his stint as AFP Chief of Staff. Rabusa recounted, that due to the pabaon system, the late Secretary was 50M richer when he left the AFP. All of a sudden, all had their fingers pointing at the late general. In a desire to redeem himself, he pleaded the committee if he could ask a couple of questions for Col. Rabusa. He said, “Ako po ba’y naging ganid? Ako po ba’y naging suwapang? Ako po ba’y nanghingi?” The late Secretary obviously felt like a helpless lamb before a group of cannibals wanting to gnaw his every limb. He was like gasping for his breath when he said, “Mr. Chairman it is my reputation that is at stake here.” But was smashed to death when Senator Trillianes said, “No, you do not have any reputation to protect here.” Now, the general was facing a battle without a battalion of soldiers to call on to. He was facing a war alone and his military instincts proved futile to his avail. Unlike him, his enemies were all ready for war that day. That day however ended like any other Senate inquiry…all media hype, endless bickering, tainted reputation and a public clamoring for more.

In a later interview, Rabusa, with some hesitations but with insistence upon Karen Davila, added that the general’s wife and his family also allegedly benefited tremendously from these corrupt practices in the AFP. Col. Rabusa also recounted in a casual manner how he splurged AFP funds by ingratiating the general’s wife with travel allowances upon her request or when he treats occasionally the general’s sons for a boy’s night-out. All of these happened when the late general was the head of the AFP and GMA was commander-in-chief. After these revelations, public outrage was now evident in all social networking sites. And the ill feelings of the public towards the late Secretary, as he was associated with the infamous administration of GMA, was revived again.

Personally, I know where Senator Trillianes is coming. His passion and resolute commitment to reform the ranks of the AFP has caused him jail time and alienation from the public. Being one of the leaders of the 2003 Oakwood mutiny, Senator Trillianes is well-versed with issues of corruption in the AFP. Just like the sentiments of the RAM boys during post martial law years, the idealist senator blames the high ranking officials of the AFP for causing an indelible blot in the name and reputation of the military as an institution. Of course, we all know he was too fed up of the vicious cycle of corruption in government, the AFP in particular, the very institution he belongs in. This however is neither a justification nor an excuse of the way he acted and ridiculed the person of the late Secretary. He must remember that as a legislator, the Senate is a different battlefield.

Very briefly, let me point out the constitutional underpinnings of a legislative inquiry. In our constitutional scheme, Congress is vested with the totality of legislative powers. Basic is the rule that its primary tasked is to pass laws. That’s the general rule, at least. But the constitution made it sure that pursuant to its law-making function, certain incidental powers are needed so that Congress may accomplish its purpose. Among the incidental powers of Congress is the power to conduct legislative investigation in aid of legislation. But what is the purpose behind legislative inquiries vis a vis legislation? In one of the landmark cases on the subject the Supreme Court opined that, “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 frequently true─ recourse must be made to others who possess it.” Thus, the 1987 Constitution under Article VII Sec. 21 expressly provides that, “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.” It was only under the 1973 Constitution, and of course the 1987 Constitution, that the power of legislative inquiry has found its place as an explicit constitutional provision. This is not to say however that such power did not exist under the 1935 Constitution. Even before, although there is no provision in the 1935 Constitution explicitly granting Congress the power to investigate, the rule was such power can be inferred from the express power of legislation.

Just like any other power, the power to investigate is likewise susceptible to abuse if placed in the hands of irresponsible leaders. Time and again, we decry the conduct of legislative investigations. Witnesses were unfairly treated and subjected to public humiliation. Some egoistic legislators for obvious reasons tend to intimidate witnesses by citing them in contempt if they refused to cooperate. It is for this reason that under the 1987 Constitution the prevailing view is that said provision is not to grant power but in fact to limit its exercise. Specifically for the protection of persons appearing before legislative investigations, three limitations are in place: (1) it must be in aid of legislation; (2) it must be in accordance with its duly published rules of procedure; (3) the rights of persons appearing in or affected by such inquiries shall be respected.

The legislative power of Congress is broad and well-nigh unlimited covering almost everything within its reach subject only to the limitations set forth in the Bill of Rights and the constitution itself. On the basis of this premise, the power of investigation which flows directly from the express power of legislation can be understood in this light. The first limitation that the legislative inquiry must be ‘in aid of legislation’ speaks of the requirement by which the legislative body or any of its committees acquires jurisdiction over the subject matter pertinent to the inquiry. It does not say much actually towards the protection of witnesses or resource persons summoned to appear before any legislative investigation. Because of the doctrine of separation of powers, the long standing rule is that every legislative investigation must be presumed in ‘aid of legislation’ except in cases which comes under the expanded jurisdiction clause of the Supreme Court─ when there is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of Congress in the exercise of its powers.

The second limitation that the legislative investigation must be ‘in accordance with its duly published rules of procedure,’ talks about the basic requirement of due process under the bill of rights. Here while the constitution recognizes the power of Congress to make its own internal rules the same must be published so as not to offend rights of private person appearing before legislative inquiries. Publication is an essential requirement of due process for it gives notice to private persons whose rights might be affected during investigations.

The last limitation on legislative investigation is that “the rights of persons appearing in or affected by such inquiries shall be respected.” According top Fr. Bernas, “this is just another way of saying that legislative investigation must be subject to the limitations placed by the Constitution on governmental action. And since all governmental action must be exercised subject to constitutional limitations, principally found in the Bill of Rights, this third limitation really creates no new constitutional right.” In any event, the rights protected therein cover the right against self-incrimination, right to privacy, right against unreasonable searches and seizure and of course, the right of due process.

I do not dispute the fact that plea bargaining agreement is a legitimate subject for legislative investigation in aid of legislation. Remember the “Brunei beauties” controversy in the 90s? As absurd as it was, that too was presumed to be in aid of legislation. Certainly, massive corruption in the government like in the AFP deserves proper investigation. But Senators must be circumspect and knowledgeable of the fact that they wield awesome powers because of the institution they belong. Apart from the power of legislative investigation, legislators too are granted parliamentary immunity for any speech or utterances made within the halls of Congress. Thus, Article VI Sec.11 states in part, “No member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.” Pursuant to this provision it appears that a senator has unbridled right to question or even malign a resource person with impunity. For this he cannot be charged in any court of law for his libelous remarks against a witness appearing before legislative inquiries. (Will the majority of the Senate punish Senator Antonio Trillianes for his below the belt remarks during the inquiry when he said, “No you don’t have any reputation to protect,”? I doubt it!)

I have yet to see the published rules of the Senate blue ribbon committee. In an interview, Senator Joker Arroyo former chair of said committee, laments that the rules of the committee should be amended to ensure that the right of a resource person libeled during a hearing will be protected. It appears that the present rules of the Senate blue ribbon committee is patterned after the 1935 Constitution which clearly did not provide for the protection and respect of the rights of persons being summoned. Hence, under the existing rule, a resource person is prohibited to examine or cross-examine any of its witnesses. “The resource person's right to defend himself on the spot is curtailed. If at all he can exercise it, he does so not because he is entitled to it but by the grace of the chairman, who may even disallow it,” said Senator Joker Arroyo. As mentioned earlier, the express provision on legislative investigation in the 1987 Constitution is not a grant of power but a limit to its exercise. The excesses committed in the past prompted the framers of the 1987 Constitution to erect limitations that may check the abuses inherent in any legislative inquiry.

On that note, I still believe that the Senate inquiry must not in anyway be hindered by this unfortunate death of the Secretary. In fact, while I understand that the family is still in mourning, the Senate must still continue to probe on this matter, even if it needs calling the general’s wife. After all, she benefited from it. However, again I believe certain decorum must be afforded during these investigations. I sincerely believe that because of this tragic event, the Senate must reexamine its rules and guidelines with respect to persons appearing before any legislative investigation. Respect breathes respect.

POSTSCRIPT: Last week, I posted an entry here which alludes more particularly to the death of my beloved father. As I watch the necrological services on cable channel, I cannot but share a tear or two for them. Of course, my brothers and the sons of the Secretary Reyes may not be the same in several aspects with respect to the death of our respective fathers. But I am sure that we share the same sorrow and grief of losing a very loving father. In this level, differences are narrowed down and similarities fall in one category, simply, we are sons who lost a father. It is probably why I understood why Mark Reyes, in his eulogy for his late father, defended him amidst the Secretary’s apparent suicide. He said and emphasized over and over again that his father was a Filipino public servant who tried his best to work in a very flawed system. But while I share the same sentiments of trying to leave a good legacy to his father’s reputation tainted by the recent events, his words did not win me over. In fact, it made me more thinking. Of course, we can always pray he should not have ended his life and defended himself where he could be rightfully heard. In the Senate, you must realize, he did not categorically deny he did not receive any of the pabaon or the pasalubong. In fact, he blurted out a rather ‘double-bladed’ answer when inquired upon. He said he did not ask for it nor did he ask for more, which therefore suggests, that other AFP chiefs may have asked for it or were greedy to ask for more. Come on, 50M pesos was an unimaginable amount especially for soldiers fighting with all-worn out boots or living with a 1000-peso monthly allowance. Again, of course, we all want him to say his piece. If only he did, then maybe, his son would not have to do it for him.

My father was no general, no secretary, did not have any of his father’s educational attainments, but I did not have to defend my father on any occasion- especially at his death. As far as I can recall, our family was overwhelmed with too much good words upon his death. In fact, in my eulogy, what was left for me to share, was how good a father he was to us three. And he was. I bet Secretary Reyes was too. Amidst the controversies, I believe, that must have been a good way to end it. He was a good father. In that battlefield, the young Reyeses can definitely put their names on the line. It was a playing field that they can attest to and that no one, not even "a one single-amoeba" has the right to question.


The 1987 Constitution: A Commentary by Fr.Joaquin G. Bernas, SJ
Philippine Political Law by Justice Isagani A. Cruz
Philippine Daily Inquirer