Blog Lecture No. 11: In aid of legislation

Ok class! Instead of lecturing about habeas corpus (sounds like Habemus Papam, and it is likewise similar) since it’s not relevant (at least not yet), I’ve decided to give a short lecture on congressional inquiries.

The power of Congress to conduct inquiries in aid of legislation is derrived from Article VI of the 1987 Constitution. The pertinent portion 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.

Section 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

But even without these provisions, the power of congressional inquiry is inherent in legislative power, as shall be explained below.

What is the power of legislative inquiry?

It is the inherent power of Congress or any committee thereof to conduct investigations or hearings in aid of legislation.

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.) [From the classic case of Arnault vs. Nazareno, G.R. No. L-3820, 18 July 1950; BAR REVIEWEES TAKE NOTE!)

What is its scope?

It scope is as wide as legislative power itself. In the words of the Supreme Court, “[I]t is coextensive with the range of legislative power.” [Arnault vs. Nazareno, as quoted above]

This means it is plenary (translation: all-encompassing; anything under the sun), except for constitutional matters, though the Constitution likewise provides for a mechanism that gives Congress to deal with such. More on this in another blog lecture, if Cha-Cha becomes relevant again.

In the issue of materiality, the materiality of a question that it may be propounded to a witness is determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation.

The reason is simple. Congress has to acquire accurate information to effectively legislate. Hence, this wide latitude given in congressional inquiries.

What are its limits?

Under the Constitution, the rights of persons appearing in or affected by such inquiries shall be respected.

Off the bat, I can name the right against self-incrimination.

How different is this from a court hearing?

A Congressional inquiry is more “loose” than a court hearing.

In a court hearing, the types of questions are limited to its materiality and pertinence to the issues or the subject of the case. Questions to a witness have strict rules and the manner of questioning (especially in direct examination) is very limited and should be logically arranged.

From experience, you cannot ask a “leading” question (in simplest terms, a question answerable only by a yes or a no) and all questions have some legal, logical basis or flow from the last question (the technical term is laying the predicate.)

Conducting a direct examination is one of the hardest, most tedious jobs a litigator has in a court hearing. Newbies even make scripts and rehearse their witnesses beforehand. This is good for beginners. But we experienced lawyers love to throw objections left and right in order to derail a newbie’s train of thought. With a script, it is difficult to get back on track once his adversary throws and correctly objects to the line of questioning. The script, then, gets thrown out the window.

It takes experience, however, to conduct a direct examination without a script. But a scriptless examination cannot be derailed by the Jedi mind tricks of his Sith adversary. There is a downside to it also. If the witness does not know the point of the litigator, there may be surprises along the way. So it’s also a good idea to discuss with a witness the line of questioning and my point in putting him in the witness stand beforehand.

(How about me? It depends. Some witnesses are too scared so I still prepare scripts. But I also explain to a witness that the script can change without prior notice. Then, we just play it by ear… Now, I’m digressing)

A Congressional hearing is more free-wheeling. “Leading” questions are allowed. A Congressman or a Senator need not have a basis for asking his subsequent questions. More importantly, there can be no objections, except when the witness’ rights are to be violated.

Can Congress require the attendance of the President? Any Justice of the Supreme Court? Another Congressman/Senator?

No. Here the principle of inter-branch courtesy (or inter-parliamentary courtesy in the case of Senators/Congressmen in the other House’s committee hearings ) comes in. Anyone in a co-equal capacity in the three great branches of government (Executive, Legislative and Judicial officers stated above) can attend, though, completely at their option.

This rule also insures the independence of these three branches of government from each other. If you can haul these people’s arses in an inquiry, imagine what kind of pressure and/or influence a member of Congress has over the Chief Executive and the Judiciary…

How about Department Secretaries?

First, they can appear only with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. A department secretary is the alter-ego of the President in such department and hence, this special rule.

Second, written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance.

Third, interpellations shall not be limited to written questions, but may cover matters related thereto.

Finally, when the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Any more questions? (I hope not.)
So I hope you have fun watching/listening to this day’s events…

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