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.

Respondent Senate of the Philippines, acting through the Senate Committee on Accountability of Public Officers and Investigations, otherwise known as the Senate Blue Ribbon Committee, has the inherent power to punish non-members for legislative contempt, pursuant to its power to conduct inquiry in aid of legislation. Being implied or incidental to its power of inquiry, the power of contempt should also be limited in the same manner: "in aid of legislation in accordance with its duly published rules of procedure[;]" and "the rights of persons appearing in or affected by such inquiries shall be respected."1

Under its Rules of Procedure Governing Inquiries in Aid of Legislation, the Senate may punish or cite in contempt any witness who testifies falsely or evasively before the proceedings. However, the term "evasively" is vague and should be struck down as unconstitutional "on its face" as it sends a chilling effect on the right to free speech. Also, for failure to accord due process to petitioners Linconn Uy Ong and Michael Yang Hong Ming, as the arrest orders were not in the Rules, the Orders citing petitioners in contempt and directing their arrests were issued by the Senate with grave abuse of discretion amounting to lack or excess of jurisdiction.

Concomitant with legislative power is the power of Congress to conduct inquiries in aid of legislation and the power to enforce it.2 Although the 1973 Constitution3 and 1987 Constitution4 explicitly grant the legislative department with the power to conduct inquiries in aid of legislation, it does not expressly grant the power to enforce or punish non-members for legislative contempt.

Nevertheless, in the 1930 case of Lopez v. De los Reyes,5 the Court recognized the inherent power of the Legislature to punish persons not members for contempt although no express power to punish for contempt was granted by the Organic Act. It held that the legislative power to punish for contempt "arises by implication, is justified only by the right of self preservation, and is the least possible power adequate to the end proposed."6

Subsequently, in Arnault v. Nazareno,7 a case decided by the Court under the 1935 Constitution, the Court defined the power to conduct inquiries and to punish a person not its member for contempt as "essential and appropriate auxiliary to the legislative function", to wit:

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 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 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. The fact that the Constitution expressly gives 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.

But no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire.8 (Citations omitted)

Arnault was called upon by the Senate to testify on the questionable purchase of the Buenavista and Tambobong estates by the Rural Progress Administration. He was detained for contempt for his refusal to answer the questions by the senators.

In the subsequent case of Arnault v. Balagtas9 arising from the same facts as Arnault v. Nazareno, this Court expounded on the power to punish for contempt as implied or incidental to the exercise of legislative power, or necessary to effectuate the power, and its exercise not being subject to judicial interference, absent manifest, and absolute disregard of discretion:

Contempt power is inherent 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."'11 Still, the contempt power of the Legislative must be distinguished from the contempt power of the Judiciary, as explained in the subsequent case of Arnault v. Balagtas:

The process by which a contumacious witness is dealt with by the legislature in order to enable it to exercise its legislative power or authority must be distinguished from the judicial process by which offenders are brought to the courts of justice for the meting of the punishment which the criminal law imposes upon them. The former falls exclusively within the legislative authority, the latter within the domain of the courts; because the former is a necessary concomitant of the legislative power or process, while the latter has to do with the enforcement and application of the criminal law.12

In Negros Oriental II Electric Cooperative, Inc. v. Sangguniang Panlungsod of Dumaguete,13 this Court is explicit that the contempt power of Congress is sui generis and independent of the Judiciary:

The exercise by the legislature of the contempt power is a matter of selfpreservation as that branch of the government vested with the legislative power, independently of the judicial branch, asserts its authority and punishes contempts thereof. The contempt power of the legislature is, therefore, sui generis, and local legislative bodies cannot correctly claim to possess it for the same reasons that the national legislature does. The power attaches not to the discharge of legislative functions per se but to the character of the legislature as one of the three independent and coordinate branches of government.14

Contempt power has been characterized as a "matter of selfpreservation" as the branch of government vested with legislative power.15 Thus, in Standard Chartered Bank v. Senate Committee on Banks, Financial Institutions and Currencies,16 this Court found the contempt citation against petitioners reasonable and justified because petitioners' imputation that the investigation was "in aid of collection" was a direct challenge against the authority of the Senate Committee and ascribed ill motive to it.

The power to punish for contempt is grounded on necessity of information to legislate wisely and effectively, as stated in Senate of the Philippines v. Ermita:17

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.18

In In re Sabio v. Gordon,19 this Court held that it is the duty of the Presidential Commission on Good Government chairperson and its commissioners to cooperate with the Senate Committees in their efforts to obtain facts needed for intelligent legislative action. This Court underscored each citizen's obligation to respond "to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation."20

Thus, the contempt power of Congress is in aid of legislation, and not pursuant to adjudication. In Oca v. Custodio,21 this Court found that petitioners ought to be cited in contempt for their willful disobedience of court orders under the Rules of Court. It went on to distinguish between civil and criminal contempt to determine the quantum of proof and punishment necessary for a finding of contempt against the court:

Therefore, the distinction of civil and criminal contempt as discussed by the ponente,23 citing Oca, should only apply to cases involving contempt of courts, and not cases involving the legislative's exercise of its contempt powers in aid of legislation, as in the present case. Thus, the characterization of legislative contempt as criminal or punitive24 has no basis.

Despite the wide latitude granted to the legislative department to conduct inquiries in aid of legislation, such is not without limitation. These limitations also impliedly safeguard the power of Congress to cite in contempt. Article VI, Section 21 of the 1987 Constitution 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.

Pursuant to the provision, the investigation must be: (1) "in aid of legislation in accordance with its duly published rules of procedure;" and (2) "the rights of persons appearing in or affected by such inquiries shall be respected."25 Congress must exercise its powers subject to the limitations of the Bill of Rights.26 In Calida v. Trillanes:27

Nevertheless, the power of legislative inquiry, if patently abused, may be subjected to judicial review pursuant to the Court's certiorari powers under Article VIII, Section 1 of the Constitution.29

Here, both petitioners invoke the certiorari powers of this Court in claiming that the respondent committed grave abuse of discretion amounting to lack of or excess of jurisdiction in issuing the contempt and arrest orders against them. Petitioner Ong alleges that the Order citing him in contempt for falsely and evasively testifying during the September 10, 2021 hearing was unconstitutional, since the term "testifying falsely or evasively" in the Senate Rules of Procedure Governing Inquiries in Aid of Legislation is vague for having no clear standards.30 He likewise contends that respondent has no power to order his arrest.31 Petitioner Yang also questions the legal basis of the arrest orders issued against him.32

Pursuant to Article VI, Section 21 of the 1987 Constitution on its power to conduct inquiries and Article VI, Section 16(3)33 of the same on its power to determine the rules of its own proceedings, respondent Senate adopted the Rules of Procedure Governing Inquiries in Aid of Legislation in 2010. These rules are presumed valid and constitutional based on the respect that the Judiciary accords to the Legislature as noted in Estrada v. Sandiganbayan:34

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch — the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality.35

However, the validity of laws and rules may be constitutionally challenged either: (1) "as applied" upon considering the "actual facts affecting real litigants;" or (2) "on its face," or a "facial challenge" upon "an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities."36

In an "as applied" challenge, the petitioner must allege and prove that there is an actual case or controversy through facts showing breach of rights or a demonstrable contrariety of legal rights.37

On the other hand, a facial challenge has been considered as a narrow exception to strike down a law despite lack of an actual case or controversy.38 Thus, invalidation of the law "on its face" is specifically limited to the following circumstances:

In free speech cases, a facial challenge on a statute has been allowed. The primacy and high esteem accorded the right to free speech has been emphasized by this Court in Chavez v. Gonzales:40

An analytical tool to test statutes in free speech cases "on their faces" is the doctrine of vagueness, as explained in People v. Nazario:42

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men "of common intelligence must necessarily guess at its meaning and differ as to its application." It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.43

Under the doctrine of vagueness, a statute can be facially challenged "if it is vague in all its possible applications" to prevent a chilling effect, which deters third persons not before the court from exercising their right to free speech, thus:

As I noted in Disini v. Secretmy of Justice,45 the doctrine on "chilling effect" from the United States Supreme Court jurisprudence is advisory before us:

The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Marcus v. Search Warrant, 367 U.S. 717, 367 U.S. 733. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions.46 (Emphasis in the original)

The "chilling effect," however, has been incorporated in our jurisprudence as in the case of Chavez. There, this Court held that the press statements of the Secretary of Justice and of the National Telecommunications Commission constituted impermissible forms of prior restraints on the right to free speech and press. This Court found enough evidence of chilling effect due to the complained acts on record, after considering the totality of the injurious effects of the violation to private and public interest:

In Calleja v. Executive Secretary,48 this Court permitted a facial challenge of the provisions in the Anti-Terrorism Act of 2020, which involved and raised chilling effects on freedom of expression and its cognate rights.

Here, petitioner Ong challenges the Senate Rules of Procedure Governing Inquiries in Aid of Legislation pertaining to contempt, specifically the term "testifies falsely or evasively," as applied to him.

I submit that the term "evasively" is vague and should be struck down "on its face" as sending a chilling effect on the right to free speech.

The pertinent provision of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation states that:

Section 18. Contempt. - (a) The Chairman with the concurrence of at least one (1) member of the Committee, may punish or cite in contempt any witness before the Committee who disobeys any order of the Committee or refuses to be sworn or to testify or to answer a proper question by the Committee or any of its members, or testifying, testifies falsely or evasively, or who unduly refuses to appear or bring before the Committee certain documents and/or object evidence required by the Committee notwithstanding the issuance of the appropriate subpoena therefor. A majority of all the members of the Committee may, however, reverse or modify the aforesaid order of contempt within seven (7) days. (Emphasis supplied)

Unlike an evasive testimony, a false testimony can easily be understood and discerned based on facts, as the term "false"49 indicates.

Respondents Senate et al. cited petitioner Ong in contempt for allegedly testifying falsely and evasively during the September 10, 2021 hearing for not being able to answer respondents' questions, like "how much was the payment made to the suppliers, where did the payment came from, what kind of agreement they had with the suppliers," thus:

Senator Drilon also pointed out that petitioner Ong was testifying falsely and evasively during the hearing:

On the other hand, petitioner Yang was also cited in contempt for allegedly testifying evasively, although the records show that petitioner Yang's testimony was inconsistent:

Whether a witness genuinely did not know or did not recall the answer or was evasive in answering a question is largely a matter of judgment or opinion. It requires an assessment of the totality of the evidence presented to determine whether a witness speaks truthfully or is merely trying to evade answering the question directly.

Here, petitioner Ong was immediately adjudged as testifying evasively based on the September 10, 2021 hearing alone. As for petitioner Yang, the ponente pointed out that "Sen. Lacson's series of repetitive questions as regards Yang's knowledge of Pharmally evoked different answers ... While Yang initially tried to avoid giving any leading information as regards his connection with Pharmally, he was able to subsequently aver in the course of the proceeding that he introduced the suppliers of facemasks and PPEs to Ong."53 Thus, even inconsistent answers were equated with testifying evasively. It appears then that respondents have an unbridled discretion in carrying out the term "evasively" and therefore became an "arbitrary flexing of the Government muscle." Furthermore, petitioners were not fairly notified of the conduct or testimony to avoid since the term "evasively" is not defined in the rules. Considering that being cited in contempt by testifying "evasively" affects substantive rights, technical rules of evidence applicable to judicial proceedings should have been observed.54

"Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act[.]"55 However, here, not only is the term "evasively" not defined, but also the legislative will in using this term is not clear as can be gathered from the respondents' varying interpretation of the term.

By citing in contempt a witness on the ground of testifying "evasively," which is vague, respondent Senate sends a chilling effect on the right to free speech.

The scope of freedom of expression is as broad as the matters by which the Senate may inquire in aid of legislation:

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative.56 (Emphasis supplied)

To immediately adjudge a testimony as "evasive" during an inquiry in aid of legislation would be to straitjacket the exercise of freedom of speech. The Senate may then fail to acquire the information necessary to legislate wisely or effectively, or it may limit its exercise of legislative power to conventional ideas. The ultimate purpose of its contempt powers—to obtain the necessary information to legislate wisely or effectively—will be defeated. Thus, unlike "falsely," the term "evasively" in Section 18 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation should be struck down as unconstitutional for being void for vagueness.

However, to pass constitutionality, the term "evasive" should be de.fined as failure to directly and satisfactorily respond to any relevant question, without any express and valid claim of right or privilege.

In its conduct of inquiries in aid of legislation, the Constitution clearly provides that the Senate or House of Representatives respects the rights of persons appearing in or are affected by such inquiries.57 The rights of a person refers to the rights under the Bill of Rights, which includes the right to due process58 and the right against unreasonable searches and seizures. Thus, Article III, Sections 1 and 2 of the 1987 Constitution specifically provides:

SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The Rules of Procedure of the Senate and the Rules of the Blue Ribbon Committee do not provide for the power to order an arrest, but only the power to detain:

Section 18. Contempt. — . . . A contempt of the Committee shall be deemed a contempt of the Senate. Such 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.

(b) A report of the detention of any person for contempt shall be submitted by the Sergeant-at-Arms to the Committee and the Senate. (Emphasis supplied)

Furthermore, cognizant that the power to arrest deprives a person of one's cherished fundamental right to liberty, Article III, Section 2 of the 1987 Constitution and Rules 112 and 113 of the Revised Rules of Criminal Procedure specify the guidelines and procedure for the execution of arrest.

As the ponente admitted, unlike the power to detain, the power to arrest a witness is not provided in the Senate Rules of Procedure Governing Inquiries in Aid of Legislation.60 Since the power to arrest inevitably poses a potential derogation of individual rights to liberty and due process, the rules cannot be liberally construed to have impliedly granted such power. Thus:

The arrest of a citizen is a deprivation of liberty. The Constitution prohibits deprivation of liberty without due process of law. The Senate or its investigating committees can exercise the implied power to arrest only in accordance with due process which requires publication of the Senate's Rules of Procedure. This Court has required judges to comply strictly with the due process requirements in exercising their express constitutional power to issue warrants of arrest. This Court has voided warrants of arrest issued by judges who failed to comply with due process. This Court can do no less for arrest orders issued by the Senate or its committees in violation of due process.61

As legislators, respondent Senate et al. are fully conscious of the significance and impact of words used in crafting laws and rules. It could have easily indicated in its own rules the power to arrest if they intended to do so. Thus, Senate et al. must strictly observe the rules they themselves created to govern their own proceeding. The Senate has another recourse to compel the attendance of petitioners. For refusal without legal excuse, the Senate can file a criminal case for violation of Article 15062 of the Revised Penal Code, as amended, against such person, instead of ordering the arrest, which is not specifically provided for in its rules.

An action as critical and as important as an order of arrest must be done strictly in accordance with a specific provision in the duly published rules of procedure, for it to be constitutionally valid.63 Since the power to arrest is not in its duly published rules of procedure, the Senate cannot issue the arrest orders against petitioners without violating the Constitutional limitations on the legislative's power to conduct inquiries which are "in accordance with [their] duly published rules of procedure." Ordering the arrest of petitioners, which is not provided for in the Senate's duly published rules of procedure, is consequently violative of petitioners' right to due process. Further, this clearly contravenes the Constitution on the limitations on inquiries in aid of legislation.

"There is grave abuse of discretion when the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of [its] judgment, as when the assailed order is bereft of any factual and legal justification."64 For ordering the arrest of petitioners, the respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction.

ACCORDINGLY, I vote that the Petitions be PARTLY GRANTED. The Order dated September 10, 2021, citing petitioners Linconn Uy Ong and Michael Yang Hong Ming in contempt of the Senate Blue Ribbon Committee, and directing their arrest, should be NULLIFIED for having been issued with grave abuse of discretion.