MIRIAM: JUDGE, NOT SENATE, SHOULD DETAIN BOLANTE
Bolante’s detention by the Senate might be unconstitutional. It appears that there is a conflict between the constitutional privilege against self-incrimination, and the Senate Rule on detention for contempt.
On the one hand, the Constitution provides that no person shall be compelled to be a witness against himself. On the other hand, the Senate Rules provides that the committee may punish for contempt any witness who testifies falsely or evasively.
The Supreme Court, in interpreting the constitutional provision, has repeatedly emphasized that there is a difference between a mere witness and the accused. It appears that Bolante is not a mere witness, or a mere person of interest, meaning a suspect. He is in fact the accused in what seems to be a criminal case for violation of certain criminal laws, including perjury, malversation of public funds, and plunder.
Since Bolante is the accused, he can refuse outright to take the stand as a witness. In the latest 2007 case of Standard Chartered Bank v. Senate Committee on Banks, Financial Institutions and Currencies, the Court repeated the rule that an accused occupies a different tier of protection from an ordinary witness. The Court said: “Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to take the witness stand and refuse to answer any or all questions.”
The Court explained that the right of the accused against self-incrimination also applies to respondents in administrative investigations, such as legislative inquiries in aid of legislation. The Court laid down the test for determining whether the right of the accused against self-incrimination can be invoked: administrative investigations should “partake of the nature of, or are analogous to criminal proceedings.”
The Supreme Court has applied the exception in favor of the accused in administrative cases and proceedings that partook of the nature of a criminal proceeding, or was analogous to a criminal proceeding. The Court first applied the exception in the 1962 case of Cabal v. Kapunan. It continues to be quoted with approval by the present Supreme Court. In the 2006 case of Rosete v. Lim, the present Supreme Court ruled: “It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that control.”
In Standard, the Court ruled that the persons summoned by the Senate could not invoke the rule against self-incrimination, because they were summoned merely as witnesses. Thus, the facts in Standard are different from the Bolante case. But the ruling remains the same. More specifically, the Court in the 2007 Standard case cited with approval the ruling in the 1985 case of Galman v. Pamaran, that the right against self-incrimination applies to all cases in which the person is sought to be punished.
My interpretation of the 2007 Standard ruling is: in legislative inquiries, the Senate may compel a mere witness to testify under oath, but it cannot compel the accused himself to testify. If the Court cannot compel the accused to testify, neither can a Congress committee.
This ruling is based on the distinction between the purpose of a trial court, and the purpose of a legislative inquiry. In the 2007 case, the Court ruled: “The prosecution of offenders by the prosecutorial agencies and the trial before the courts is for the punishment of persons who transgress the law. The intent of legislative inquiries, on the other hand, is to arrive at a policy determination, which may or may not be enacted into law.”
In the same case, the Court also said that a Congress committee cannot penalize a violator, except when it exercises the power to punish for contempt. However, the Court was talking about a mere witness, and not about the accused himself.
Parenthetically, under the Rules of Court, while a judge may summarily punish a person for direct contempt, meaning, misbehavior in the presence of the Court, the citation for direct contempt is punished only by a fine of no more than P2,000, or imprisonment of no more than ten days or both.
If the Senate continues to detain Bolante, the detention might be unconstitutional, because it appears that the Senate has already enough inputs to arrive at policy determination, which is the sole purpose of a legislative inquiry. The Senate Blue Ribbon Committee’s power is limited only to the filing of a committee report recommending that Bolante should be charged before the Ombudsman.
The Court has ruled that the Senate’s recommendation, along with the evidence, constitutes the boundary of Senate jurisdiction: “At best, the recommendation, along with the evidence contained in such a Report, would be persuasive, but it is still up to the prosecutorial agencies and the courts to determine the liabilities of the offender.”
The question may be raised on whether Bolante waived his right against self-incrimination, by appearing and testifying before the Senate. I respectfully submit that he made no such waiver. It was his right to narrate his version to us – no matter how outrageous, as I myself pointed out during the first hearing – but he still retains the right to refuse to take the witness stand at a farther point.
Even on sick leave, I issue this humble statement, in the hope that the Senate Blue Ribbon Committee will consider the jurisprudence. My humble proposal is that Bolante, on his motion, should be released. (Anyway, he might file a motion for temporary release for Christmas, which has to be granted for humanitarian grounds). Immediately thereafter, the Blue Ribbon Committee could submit to the Senate in plenary session a partial report recommending that the Ombudsman should immediately conduct preliminary investigation and file the case before the Sandiganbayan. There, Bolante will have to be detained unless he posts bail. However, if the case filed against him is plunder, which is nonbailable, then he would continue to be in detention.
Despite my own personal assessment that Bolante is stonewalling, as a constitutional scholar, I respectfully submit that all Congress members are bound by the constitutional warning that the rights of persons appearing in legislative inquiries should be respected.
Labels: Blue Ribbon Committee, Joc-Joc Bolante, Miriam, Senate, Supreme Court