G.R. No. 257401- Separate Concurring Opinion

G.R. No. 257401, March 28, 2023,
♦ Decision, Inting, [J]
♦ Concurring Opinion, Gesmundo, [CJ]
♦ Concurring and Dissenting Opinion, Lazaro-Javier, [J]
♦ Concurring and Dissenting Opinion, Caguioa, [J]
♦ Separate Concurring Opinion, Leonen, [J]

LINCONN UY ONG, PETITIONER, VS. THE SENATE OF THE PHILIPPINES, THE SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS (BLUE RIBBON COMMITTEE); HON. SENATOR RICHARD J. GORDON, IN HIS CAPACITY AS THE CHAIRMAN OF THE BLUE RIBBON COMMITTEE; HON. SENATOR VICENTE C. SOTTO III, IN HIS CAPACITY AS SENATE PRESIDENT OF THE PHILIPPINES; MGEN RENE C. SAMONTE AFP (RET.), IN HIS CAPACITY AS SENATE SERGEANT-AT-ARMS, RESPONDENTS.

MICHAEL YANG HONG MING, PETITIONER, VS. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, RESPONDENT.

After the Commission on Audit (COA) released its Consolidated Annual Audit Report for Fiscal Year 2020, the Senate Committee on Accountability of Public Officers and Investigations (Senate Blue Ribbon Committee) initiated an inquiry in aid of legislation relative to the Department of Health's disbursement of funds for addressing the Coronavirus Disease 2019 pandemic. Pursuant to the conduct of the inquiry, several resource persons were requested to attend, which included the officials of Pharmally Pharmaceuticals Corporation (Pharmally), a corporation that secured P8.868 Billion worth of contracts from the Procurement Service of the Department of Budget and Management (PS-DBM).1

As a member of the Board of Directors, and as the Supply Chain Manager of Pharmally, petitioner Linconn Ong (Ong) was among the resource persons invited by the Senate Blue Ribbon Committee. Petitioner Michael Yang Hong Ming (Yang) was likewise invited after the Senate Blue Ribbon Committee discovered that the incorporators of Pharmally had links with Yang.2 Accordingly, subpoenas ad testificandum were sent to Ong and Yang (together, petitioners), to appear on various dates before the Senate Blue Ribbon Committee.3

Due to the failure of petitioners to appear on various dates, despite having received the subpoenas directing them to do so, the Senate Blue Ribbon Committee cited them both in contempt. Thus, on September 7, 2021, Orders were issued directing the Office of the Senate Sergeant-at-Arms (OSAA) to arrest and detain petitioners until they appear and give their testimonies.4

Subsequently, petitioners appeared during the September 10 2021 hearing, where they were again cited in contempt by the Senate Blue Ribbon Committee for "testifying falsely and evasively."5 Ong was eventually arrested and detained at the Pasay City Jail, while a Lookout Bulletin was issued by the Bureau of Immigration against Yang, pursuant to a request from the Senate Blue Ribbon Committee.6

Ong and Yang separately filed petitions for certiorari and prohibition directly before the Court, assailing the September 7 and 10, 2021 Orders of Contempt. Ong, in particular, challenges the constitutionality of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, as amended (Senate Rules of Procedure on Inquiries), as well as the Rules of the Senate Blue Ribbon Committee, insofar as these rules punish for contempt the act of "testifying falsely or evasively."7

According to Ong, the determination of whether a witness testifies falsely or evasively is an evidentiary matter that is within the power of the courts to resolve. He further assails the rules for being vague, there being no clear standards on what constitutes "testifying falsely or evasively," which is entirely within the discretion of the Senate Blue Ribbon Committee to determine.9

The ponencia acknowledges the Legislature's power of contempt corollary to its authority to conduct inquiries in aid of legislation, as well as its concomitant power to arrest contumacious witnesses. It likewise finds the argument of Ong untenable and rules that the phrase "testifies falsely or evasively" is sufficiently clear and understandable by any person of common knowledge or intelligence.10

However, the ponencia nonetheless holds that Yang's "inconsistent or incomplete answers in the course of his testimony does not conclusively establish that x x x [there was] refusal or unwillingness to testify."11 The ponencia further rules that the Senate Blue Ribbon Committee failed to accord petitioners with due process consistent with the safeguards in criminal proceedings. Accordingly, the ponencia rules that the Senate Blue Ribbon Committee gravely abused its discretion in citing petitioners in contempt and ordering their arrest without an opportunity to be heard.12

I respectfully submit this Opinion to register my concurrence and dissent with the ponencia.

In particular, I concur with the finding that the phrase "testifies falsely or evasively" does not suffer the vice of vagueness. However, I dissent as to the ruling that the September 10, 2021 Order citing petitioners in contempt should be nullified.

The inherent contempt power of the Legislature, or in this case, the Senate, rests on the principle of self-preservation. As a mechanism for compulsion, its contempt power is integral to conducting inquiries in aid of legislation, which, in turn, is vital to its exercise of its core functions — to legislate policies wisely and effectively.13 Thus, I respectfully submit that its findings of contempt, particularly whether a witness committed a contumacious act, should be accorded respect by the Court.

As well, witnesses or resource persons invited to attend legislative investigations are reasonably expected not only to be present during the hearing, but to provide accurate and correct information. Viewed through this lens, a witness who "testifies falsely or evasively" may be penalized by the Senate pursuant to its contempt power as this essentially amounts to the obstruction of its legislative functions. Indeed, the phrase "testifies falsely or evasively" can hardly be construed as unclear or ambiguous, especially when read in relation to the entire purpose of a legislative inquiry.

In the early case of Arnault v. Balagtas14 (Balagtas), the Court acknowledged that the Legislature's exercise of its power of contempt is auxiliary to its power to conduct inquiries in aid of legislation. As a necessary consequence of its legislative functions, the broad prerogative of the Legislature in wielding this power was recognized by the Court:

While Balagtas was decided prior to the expansion of the Court's power of judicial review under the 1987 Constitution, the Court recognized that it may review the exercise of the contempt power "when there has been a violation of a constitutional inhibition, or when there has been an arbitrary exercise of the legislative discretion."16 Thus, it nonetheless passed upon the extent of the Senate's contempt power by determining whether the person cited in contempt was accorded due process.

In the much more recent case of Balag v. Senate of the Philippines17 (Balag), the Court ruled on the duration of detention for persons cited by the Senate in contempt. On one hand, the Court recognized that the rights of persons appearing in legislative inquiries must be respected, and on the other, it emphasized the significant role of the Senate's inherent power of contempt in the effective discharge of its legislative functions. For this purpose, the Court held that there should be a balance between the interests of the Senate and the rights of persons cited in contempt.18

Verily, there is no question that the Court may pass upon the issues raised in the petition, there being an allegation of grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of the Senate for ordering the arrest and detention of petitioners. As in Balag, the Court is once again tasked with the onerous duty of having to strike a balance between the rights of persons appearing in legislative inquiries and the inherent contempt power of a co-equal branch.

The power of Congress to conduct inqmnes in aid of legislation is essential to its legislative function. This enables the Legislature to obtain information for potential legislation and ensures that policies are not mere guesswork. The significance of the power of Congress to conduct inquiries in aid of legislation was particularly highlighted in Sabio v. Gordon,19 where the Court held that the breadth of the power to conduct legislative inquiries is as wide as its legislative power:20

In fine, the power to punish for contempt is inextricably linked to the power of inquiry of Congress. The contempt power is conferred to Congress "as a means of preserving its authority and dignity in the same way that courts wield an inherent power to 'enforce their authority, preserve their integrity, maintain their dignity, and ensure the effectiveness of the administration of justice."'22 Thus, while there is no explicit constitutional grant of the power of contempt, its critical role in enforcing the authority of Congress to conduct legislative inquiries is well-entrenched.

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 legislations [are] 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.) The fact that the Constitution expressly hives to congress the power to punish its Members for disorderly behaviour, does not by necessary implication exclude the power to punish for contempt any other person. (Anderson vs. Dunn, 6 Wheaton. 204; 5 Led., 242.)24 (Emphasis and underscoring supplied)

The Court then expounded in Balagtas that the contempt power is essential to the legislative function to "require and compel the disclosure of x x x knowledge and information [on which to base intended legislation]."25 Simply put, the contempt power of Congress, for all intents and purposes, effectuates its legislative function.

As an integral aspect of the functions of a co-equal branch, the Court's review of its contempt power must be in line with the constitutional limitations to the conduct of legislative investigations, namely: (1) the power must be exercised in aid of legislation; (2) it must be in accordance with the duly published rules of procedure; and (3) the rights of persons appearing in or affected by such inquiries shall be respected.26

Here, the ponencia does not take any issue with the first two limitations. As to the third limitation, however, the ponencia holds that the Senate Blue Ribbon Committee failed to accord due process to petitioners prior to citing them in contempt.27 It further rules that the finding of contempt "lacks factual basis," as petitioners cannot be held in contempt for testifying evasively solely on the basis of the testimony given during the hearing of September 10, 2021.28 Thus, the ponencia nullifies the Senate Blue Ribbon Committee's Order dated September 10, 2021 on these grounds.

A careful review of the records reveals that petitioners were unable to establish a capricious and whimsical exercise of discretion on the part of the Senate Blue Ribbon Committee. The pertinent portions of the September 10, 2021 Transcript of Stenographic Notes29 (TSN) patently show that Ong's responses to the questions concerning Yang's participation in the supply contracts were far from ideal. Senator Lacson repeated the question to Ong several times, giving him opportunities to grasp the matters being inquired upon. Ong, however, answered in a roundabout manner that largely avoided providing definite and concrete responses to the members of the Senate Blue Ribbon Committee, and in the main, denied any firm recollection of the transactions of his company.30

Yang, for his part, was asked how he became involved with Pharmally. Despite having the benefit of an interpreter to translate the questions in the language he understands, Yang provided inconsistent answers — initially denying any involvement, but subsequently revealing, in piecemeal answers, that he introduced Ong to the suppliers of face masks and protective equipment.31

The ponencia maintains, however, that the evasiveness of the witnesses "could not have been made on the basis of [their testimonies] given in the hearing of September 10, 2021 alone."32 With due respect, this finding glosses over the undisputed fact that petitioners, despite duly issued subpoenas of the Senate Blue Ribbon Committee, refused to, as they did not, appear in the hearings scheduled before the September 10, 2021 hearing. To be sure, the records bear out that petitioners complied with the subpoenas only after the Order dated September 7, 2021 was issued, citing them in contempt and directing their arrest and detention.

Stated simply, it is in the context of these factual antecedents, that the Senate Blue Ribbon Committee made its appreciation of petitioners' testimonies as being "evasive."

To be sure, the initial refusal of petitioners to follow the subpoena and appear during the prior hearings, taken together with their purposeful stonewalling during the hearing of September 10, 2021, totally negates any allegation of capriciousness on the part of the Senate Blue Ribbon Committee.

This conclusion may have been different had the members of the Senate Blue Ribbon Committee cited them both in contempt and ordered their arrest at the first instance that they answered the queries, instead of allowing petitioners several chances to provide a clear answer. But that is not what happened here. The Senate Blue Ribbon Committee in fact gave Ong several opportunities to provide a direct answer to the questions propounded by its members, not only during the September 10, 2021 hearing but in the subsequent proceedings thereafter. In the September 13, 2021 proceedings of the Senate Blue Ribbon Committee, Ong adamantly refused to testify as to the cost of the surgical masks that Pharmally obtained from its supplier, providing the cost only after painstaking requests and pleas from various members of the Senate Blue Ribbon Committee:

In the September 24, 2021 hearing, several members of the Senate Blue Ribbon Committee moved to transfer the custody of Ong to a City Jail or the New Bilibid Prison. The Chairperson did not immediately approve the motion. Instead, Ong was granted the option of providing information and documents in an executive session, with another member of the Senate Blue Ribbon Committee floating the idea of having him admitted into the witness protection program.35

On the other hand, except for the September 21 and 24, 2021 hearings,36 Yang no longer appeared in the hearings following the September 10, 2021 inquiry. This constrained the Senate Blue Ribbon Committee to ask Yang to submit several documents, which were pertinent to the legislative inquiry.37 The requests were made on two separate occasions, i.e., on October 29, 2021 and on November 9, 2021. He did not comply with either request.38

Based on the foregoing, petitioners were clearly not deprived of due process. Ong, in particular, was not arrested until September 21, 2021, or 11 days after the issuance of the assailed Order.39 He was detained at the Senate premises and later on transferred to the Pasay City Jail on November 29, 2021.40 Yang, meanwhile, evaded arrest. During the intervening period, petitioners were granted numerous chances to answer directly or provide the relevant information to the Court, but due to their continued evasion of the questions of the Senate Blue Ribbon Committee, their contempt citation remained.

At this juncture, it is important to emphasize that the contempt power of the Legislature is sui generis.41 It is distinct from a criminal prosecution of an accused charged with false testimony or perjury because, again, a witness penalized for testifying falsely or evasively may still purge themselves of contempt once they are willing to comply with their obligation to provide truthful and accurate testimony. Ultimately, maintaining good order and obtaining accurate information is at the core of the inherent contempt power of Congress.

Surely, contumacy should not be confined to merely refusing to attend a legislative hearing, to produce required documents, or to answer questions propounded during the inquiry. The witness may be present but if he or she provides circuitous or unresponsive answers to reasonable queries from the members of Congress, Congress should be able to resort to its coercive power by penalizing the witness for his or her uncooperative behavior. Willful refusal to provide information within the witness' knowledge, and in response to queries pertinent to the subiect of the inquiry, is tantamount to a refusal to testify. Citing that witness in contempt is not any less coercive in nature, even when, as in this case, it was brought about by the exasperation of the members of the Senate Blue Ribbon Committee with the roundabout answers of the witnesses.

Hence, the due process requirement in a criminal proceeding, which the ponencia argues should apply in this case, may not necessarily be observed. In the final analysis, the citation of petitioners in contempt, and the Order for their arrest, were for purposes of compelling their attendance and testimony in the legislative inquiry. That this Order was issued to likewise penalize petitioners for testifying falsely or evasively does not make it any less coercive in nature.

Furthermore, as mentioned earlier, the Court, in Balag, recognized that it must balance the interests of the Legislature with the rights of persons found to be contumacious during its legislative inquiries. I submit, however, that the Court's balancing of interests does not authorize it to intervene in matters of policy — as to how and when Congress should cite witnesses in contempt. These are matters within the discretion of Congress, as its contempt power is attached to the "sovereign character of the legislature as one of the three independent and coordinate branches of government."42

At any rate, the Court also held in Balag that "[t]he balancing of interest requires that the Court take a conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation."43 Here, it is apparent from the records that the due process rights of petitioners were observed, and the Senate Blue Ribbon Committee's inquiry as to the pandemic expenditures was adversely affected by their refusal to testify in a straightforward manner. Thus, to my mind, the Court is not in the position to confine Congress' exercise of its contempt power by reviewing whether the conduct is actually contumacious, and imposing the appropriate procedure for citing a witness in contempt.

In all, the ponencia substantially erodes the Senate's inherent contempt power by imposing the Court's own appreciation of the testimonies of petitioners. The members of the Senate Blue Ribbon Committee, and not the members of this Court, were the ones able to observe firsthand the deportment and demeanor of petitioners. The Senate Blue Ribbon Committee is therefore in a better position — better than the Court — to assess the forthrightness of the witnesses in answering the queries. Its finding of contempt should be accorded great weight and respect. The Court certainly cannot substitute its own judgment unless there is a clear showing of grave abuse of discretion, which is glaringly absent in this case.

The review of the contempt power of Congress should be directed to its observation of the constitutional limits to its power of inquiry — that is, ensuring that the constitutional rights of the persons appearing before a legislative inquiry of the Senate are protected.44 In this regard, it is relevant to consider Ong's argument that the phrase "testifies falsely or evasively" is ambiguous, thus violating his right to due process. The ponencia found Ong's arguments unmeritorious and upheld the validity of the assailed Senate Rules of Procedure on Inquiries and the Rules of the Senate Blue Ribbon Committee.45

I concur. The phrase "testifies falsely or evasively" has a straightforward meaning; it is neither vague nor ambiguous. I respectfully expound on the ponencia's disquisition on this matter, in order to emphasize the significance of the Legislature's contempt power.

A statute or regulation suffers from the vice of vagueness if it fails to provide "fair notice" of the prescribed or prohibited conduct. A vague statute or regulation is thus deemed primarily offensive to the right to due process because persons are not apprised of what conduct to avoid, and law enforcers are granted unbridled discretion in carrying out its provisions and become an arbitrary flexing of the Government muscle.46 The Court's ruling in People v. Dela Piedra47 is enlightening in this regard:

Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. A criminal statute that "fails to give a person of ordinary intelligence fair notice that his[/her] contemplated conduct is forbidden by the statute," or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," is void for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him[/her] on trial for an offense, the nature of which he[/she] is given no fair warning.48 (Emphasis and underscoring supplied)

Aside from the recognition that the inherent contempt power of Congress is critical to its exercise of its legislative powers, the Court, in Nazareno, held that the contempt power of the Senate may be exercised only as against persons or witnesses whose testimonies are required for a matter over which it has jurisdiction to inquire. Further, the question that the witness is required to answer must be pertinent to the subject matter of the legislative mqmry:

Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make, we think the investigating committee has the power to require a witness to answer any question pertinent to that inquiry, subject of course to his [or her] constitutional right against self-incrimination. The inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member; and every question which the investigator is empowered to coerce a witness to answer must be material or pertinent to the subject of the inquiry or investigation. So a witness may not be coerced to answer a question that obviously has no relation to the subject of the inquiry. But from this it does not follow that every question that may be propounded to a witness must be material to any proposed or possible legislation. In other words, the materiality of the question must be 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, that the necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question.49 (Emphasis supplied)

Here' an examination of the assailed Senate Rules of Procedure on Inquiries and the Rules of the Senate Blue Ribbon Committee would reveal that both Rules refer to a "proper question" of the Senate Blue Ribbon Committee or its members, in relation to the contumacious refusal of a witness to answer. In order to be contumacious, the witness must refuse to testify or answer a proper question, or when testifying, must testify falsely or evasively. Such "proper question" thus circumscribes the discretion granted to the Senate or the Senate Blue Ribbon Committee as it may not compel witnesses under the pain of contempt to answer queries that are not relevant to, or outside the scope of the legislative inquiry.

In the same manner, the assailed Rules are not lacking in parameters on what constitutes a false or evasive testimony. As may be gleaned from the relevant provisions of the Senate Rules of Procedure on Inquiries and the Rules of the Senate Blue Ribbon Committee, the meaning of the phrase "testifies falsely or evasively" may be inferred from the other acts that constitute contempt, all of which illustrate a patent refusal or disobedience to the lawful processes of the Senate or the Senate Blue Ribbon Committee: (1) disobeying any order; (2) refusing to be sworn or to testify or to answer a proper question; and (3) unduly refusing to appear or bring before the Senate Blue Ribbon Committee certain documents or evidence notwithstanding the issuance of the appropriate subpoena therefor. From these acts, it may be reasonably inferred that the phrase "testifies falsely or evasively" is meant to cover situations where a witness does not refuse outright to answer the question propounded by the Senate Blue Ribbon Committee or its members but provides a false answer or a non-answer that is tantamount to a refusal to testify. Such testimony, taking into consideration the purpose for the inherent contempt power of the Senate, must be of such character that is disruptive to the orderly administration of its legislative functions.

The falsity of the testimony or the evasiveness of the witness may also be inferred from the answers and demeanor of the witness sought to be punished with contempt. On this point, Nazareno is, again, enlightening:

Furthermore, the import of the phrase "testifying falsely or evasively" may be understood by referring to the general meaning and acceptation of the words false and evasive. A witness is testifying falsely if he or she knowingly provides incorrect or untrue statements with intent to deceive or mislead.

A witness called to attend legislative hearings and to testify as to matters of fact, is required to swear an oath or to give such testimony under affirmation to tell the truth.51 The assailed provisions of the Rules further provide that "[s]uch witness may be ordered by the Committee to be detained in such place as it may designate under the custody of the Sergeant-at-Arms until he/she agrees to produce the required documents, or to be sworn or to testify, or otherwise purge himself/herself of that contempt."52 The foregoing language of the Rules therefore sufficiently warns the witnesses appearing in legislative hearings of the conduct expected from them, and the corresponding consequence for contumacy.

In the same manner, neither can it be argued that the language of the challenged Rules has a chilling effect on speech.53 Being enjoined to be present when required, to produce the requested documents, and to give clear answers to questions — questions which should be pertinent to the subject of the inquiry — should not be equated to a chilling effect that censors certain forms or subject matters of expression. Again, the Court should bear in mind that the underlying principle behind the inherent contempt power of Congress is to effectuate its power of inquiry. Hence, the phrase "testifies falsely or evasively" only emphasizes the coercive nature of the contempt power in order to obtain accurate and truthful information from the witnesses appearing therein.

All told, the inherent power of contempt being assailed here is inextricably linked to the constitutional mandate of the legislature, which is to draft policies that have far-reaching implications to the public, and, in this particular case, the magnitude of the matter being investigated should not be lost on the Court — the billions of public funds spent on the pandemic response. This subject matter bears heavily on the government appropriations, the preparation of which is solely vested in Congress. Thus, the Court should not hastily rule in a manner that erodes the authority of a co-equal branch; rather, it should exercise prudence in reviewing the exercise thereof by taking conscious consideration of the public interest involved.54