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The power to destroy

by Benjamin Cardinez

On March 6, 1819, the Supreme Court of the United States speaking through Chief Justice John Marshall in McCulloch vs. Maryland, immortalized this quote:  “The power to tax is the power to destroy”. This judicial observation was in connection with it’s holding that the State of Maryland may not impose a tax on the Bank of United States, a federal institution. In the context of what is currently happening in the Philippines today, I take the liberty of making a variation in Justice Marshall’s words, to wit:  the power to investigate is the power to destroy.

The power to investigate criminal matters for purposes of prosecution is inherent in law enforcement agencies such as the PNP, NBI, Ombudsman, and the DOJ, within the limits of their respective constitutional/statutory authority. The main thrust of such investigations is the gathering and preserving of evidence that could stand up in a court of law.  Strict adherence to due process of the law is demanded.  I am not aware of any specific statutory provision which prescribes confidentiality in these investigations save, perhaps, in sex crimes or when the safety of innocent parties as well as national security, requires it. In common practice, however, this kind of investigation is usually removed from the public eye or media scrutiny.

By constitutional edict and jurisprudence, the legislative bodies, Congress and Senate as well as their respective committees, are given the power to “conduct inquiries in aid of legislation” on any subject not specifically protected by the Constitution from such inquiry.  Both bodies write their own rules of procedures in conducting such investigations, subject only to the caveat that the rights of persons appearing in, or affected by, such investigations are respected.

In recent years, the whole country has been treated to a spate of sensational investigations by various committees of the legislature, mostly in the Senate. With full coverage by the media, many congressmen and senators, who have anything to do with such hearings, see those occasions as an opportunity to shine in front of television cameras.  They try to outdo each other presenting the best a la Perry Mason imitation, cross – examining, brow-beating, and intimidating resource persons and invited witnesses as if in a criminal trial.  Many an ambitious legislator has achieved public name – recognition and “fame”, and thereby won elections, through the help of this “grandstanding” proclivity.

Admittedly, many of these legislative hearings/investigations are legitimate, reasonable, fair, and generally beneficial to the nation. They actually result in better legislation. They enable the public to know the current issues that the state is attempting to address – why, how and when. The other side of the coin presents a dark picture, however.  As any other power, this power to inquire “in aid of legislation” is subject to abuse.  Politicians without scruples who have the power to call, conduct, or participate in, such inquiries can do so unhampered by almost anything other than their own house rules. They can investigate their enemies, political or otherwise, and squeeze from the latter testimonies that are defamatory, incriminating, self-demeaning, or otherwise harmful to their personal well-being. In other words, they can make life miserable for anyone they fancy just by making them “resource person” – never mind that the constitution mandates that the latter’s rights be respected.

The media has contributed a great deal to the proliferation of ill-motivated legislative investigations. This writer believes that the media should exercise caution and be more circumspect and responsible in covering oppressive hearings and making speculative commentaries on what transpire in them.  Many reputations have been sullied, fortunes lost, even lives lost as a consequence of unbridled publicity given such inquiries.

used with author’s permission. Originally posted in his facebook note.


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