LEGISLATION AND OVERSIGHT
The determination of the court that the questions veer more toward the exercise of the legislative oversight function is also questionable. The Court implies that a line can be drawn between an inquiry in aid of legislation and an inquiry in the exercise of oversight function. Unfortunately, while there may be instances when an inquiry is undertaken solely in oversight, more often the oversight character of an inquiry is inextricable from a legislative purpose.

It is by being factually informed of the actual workings or administration of existing laws, or of the ways by which wrongdoing such as corruption is committed, that intelligent legislation may be had, whether through the amendment of existing laws or the enactment of new ones. It is because of the reality of this inter-linkage that the Court itself, in Senate v. Ermita, recognized the validity of facilitating oversight through compulsory process when such oversight is performed in pursuit of legislation.

Legislative intent, in the face of a counter-claim that none exists or that the information sought is not material, has been sustained by the Court even under lesser showing of direct relationship than what the Senate did in the Neri case. Specifically, in the case of Arnault v. Nazareno, the Senate through a resolution created a special committee to investigate an allegedly anomalous real-estate deal involving a government body, with the duty “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 therefore, and any other facts the Committee may deem proper in the premises.” While the intended legislation was not expressly stated in the resolution, the Court recognized the Senate’s jurisdiction to conduct the investigation, and acknowledged legislative intent.

The ruling in Arnault v. Nazareno finds inspiration from a U.S. court case, McGrain v. Daugherty. That case involved a Senate investigation into various charges of misfeasance and nonfeasance in an executive department. One question passed upon by the court was whether the purpose for which testimony was sought was to obtain information in aid of the legislative function.

The court stated: “It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers; specific instances of alleged neglect being recited.”

“Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit,” it added. “This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.”

The court continued, “The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject-matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispensable. In the Chapman Case, where the resolution contained no avowal, this court pointed out that it plainly related to a subject-matter of which the Senate had jurisdiction, and said: ‘We cannot assume on this record that the action of the Senate was without a legitimate object;’ and also that ‘it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded.’”

GRAVER IMPLICATION
By brushing aside, without discussion, the Senate’s pleading of need for the information in aid of legislation, and by casually concluding that the intent of the Senate was solely for oversight, the majority decision was able to stand on the mere presumption of privilege in respect to the subject presidential communications. The Court did not then have to proceed to a proper balancing of the interest embodied in keeping presidential communications secret versus the interest in adequately informing the legislative process. Neither did the majority decision have to go beyond the bare, unsubstantiated assertion of privilege based on diplomatic content.

True, the Court states that the presidential communications privilege is a qualified privilege. Yet from the way this issue was addressed, the majority may well have declared that the presidential communications privilege is absolute; that it is conclusive upon Congress, as well as upon the courts.

And so should the Court ruling be sustained, the Senate and the public would not only be forever denied the answers to three queries (unless the president waives the privilege or the same questions are asked again in another proceeding — such as a criminal trial — and the claim of executive privilege is overruled). Another result would be a situation in which executive privilege reigns supreme, not only in relation to the Congressional power of inquiry in aid of legislation, but also in other constitutional values that finds relevance in the Senate inquiry, such as transparency, accountability, and the people’s right to information.

The president, not the law, rules.

Lawyer Nepomuceno Malaluan is a trustee of the Action for Economic Reforms and co-convenor of the Access to Information Network (ATIN), of which the PCIJ is a member.