Should Senate summon Napoles?

MANILA, Philippines – It is an issue that has divided the President’s allies, legal experts and impassioned netizens. Finally, it’s decision time. Will the Senate summon Janet Lim Napoles?

Senators will meet in caucus on Monday, October 14, to discuss whether or not to issue a subpoena for the alleged mastermind of the multibillion-peso pork barrel scam.

After two letters to the Ombudsman, much hesitation and criticism, Senate President Franklin Drilon decided to consult his colleagues about the issue that observers say tests his leadership. It strained his ties with blue ribbon committee chairman Teofisto “TG” Guingona III, his partymate and fellow Aquino ally.

Beyond Senate politics, to sign or not to sign the subpoena has higher stakes. At issue is the fate of the Ombudsman and Senate probes into a corruption scheme allegedly involving top lawmakers, a controversy that led to months of angry protests. Also on the line are the power and independence of the Senate.

Napoles is accused of conspiring with legislators including Senators Bong Revilla, Juan Ponce Enrile and Jinggoy Estrada to make her fake non-governmental organizations recipients of their pork barrel funds and gave them kickbacks in return. She is among 38 respondents in a plunder complaint filed before the Ombudsman.

Senators, Cabinet officials and leading lawyers raised legal, political and practical considerations in arguing for or against Napoles’ testimony.

Here are 3 key questions for the Senate caucus:

1. Should the Senate follow the Ombudsman’s advice?

Yes

Instead of immediately signing or discarding the subpoena Guingona issued, Drilon went to the lengths of asking the Ombudsman’s opinion twice. Twice too, Ombudsman Conchita Carpio Morales said Napoles’ testimony is not advisable at this time but later clarified that she submits to the “collective wisdom” of the Senate.

Morales invoked the confidentiality rule of her office under the Ombudsman Act and Administrative Order No 7 or her office’s Rules of Procedure.

Drilon, a former justice secretary, believes the Senate must heed the advice, partly citing legal grounds. 

“Let us not forget that the Ombudsman is not an ordinary government functionary. She is an independent constitutional official, and the Office of the Ombudsman is a constitutional office. Out of prudence and out of respect for her office, we must defer to the judgment of the Ombudsman,” Drilon said in a press briefing on September 24.

He added, “That is stated in the law. She has primary jurisdiction. Under the Ombudsman Act, she has the power to check public disclosures of the evidence.”

No

Guingona and Senators Miriam Defensor Santiago, Francis Escudero, Grace Poe and JV Ejercito disagree with Drilon. With the Constitution and former Supreme Court rulings as basis, they argue that the Senate has the power to conduct inquiries in aid of legislation.

Guingona bristled at Drilon and Justice Secretary Leila de Lima for invoking Ombudsman rules. “The powers of the Senate are supreme. Nobody, nobody, not the Ombudsman nor the courts can interfere with the Senate …. and I will not allow anyone, anyone to diminish the power and stature of the Senate.”

Former Chief Justice Reynato Puno took the same position, saying “an administrative rule can never negate a constitutional grant of power.”

“What will wreck the Senate as an institution is when it surrenders its constitutional right to investigate in aid of legislation. It is nothing less than act of decapitation by the Senate on itself,” Puno said in a statement on September 26.

Santiago and Guingona also said it was wrong for Drilon to ask the Ombudsman’s advice in the first place, calling it unprecedented.

2. Will Napoles’ testimony compromise the case to be filed in court?

Yes

Drilon, Senators Bam Aquino, Sonny Angara, and Bongbong Marcos highlight the implications of the timing of a possible Napoles testimony.

The Senate President said the Ombudsman must be allowed to finish the initial fact-finding investigation to ensure a strong plunder case in the Sandiganbayan. Drilon said he is confident the majority will see the wisdom of his argument. 

In advising the Senate against the subpoena, Morales also said that because other batches of cases have yet to be filed, summoning Napoles will not produce complete or reliable information.

Senator Aquino told Rappler, “The worst thing is if the Ombudsman is not able to do her job. The end game is for the people who committed these crimes to go to jail.”

For Marcos, the issue is simple. “There is already a case. I don’t see the purpose.  Maybe there is a purpose that I don’t know about. To me, the wheels of justice have begun to turn. In this regard, we should allow that to turn.”

No

Guingona and Escudero think otherwise. They cite the Senate probe into the plea bargain deal with former military comptroller Carlos Garcia, which was conducted even while a case was already filed before the anti-graft court.

Ateneo School of Government Dean Tony La Viña said refusing to summon Napoles will set a bad precedent for “those where charges have been filed but no probable cause yet determined.” 

“Napoles cannot be treated as if she is an exception to the rule. If she is not compelled to testify, then the Senate would have adopted what would become an infamous Napoles rule that would effectively decapacitate Senate power and independence,” he said in a column in Manila Standard Today.  

3. Will Napoles’ testimony be futile?

Yes

Senators Nancy Binay, Sergio Osmeña III and even Santiago admit that the Senate will not get much out of Napoles if she will just invoke her right against self-incrimination.

Her lawyer, Lorna Kapunan, said Napoles would rather face the Ombudsman than the “carnival” that is the Senate investigation.

Besides, for University of the East College of Law Dean Amado Valdez, the Senate probe already exhausted the issue.

“They have enough [information]. In fact, Congress is now ready [to pursue legislative reforms] whether the pork barrel should be abolished,” Valdez said in an ANC interview.

No

For Guingona, there are still unanswered questions and only Napoles as the scam’s “centerpiece” and “main actor” can complete the picture.

While Drilon counts on the Senate majority for support, Guingona said, “Suportado ako ng taumbayan sapagkat ang taumbayan ay naghahanap ng katotohanan.” (The public supports me because the public is searching for truth.) Some pundits also questioned Drilon’s motive for not signing the subpoena, citing reports Napoles gave him an expensive Montblanc pen and the release of his photos with her that raised questions about their connections.

Inquirer columnist Conrado de Quiros wrote that ultimately, “keeping Napoles away from the Senate won’t just be bad for the Senate, it will be bad for the people.”

“By showing in all its lurid and scandalous aspects money that is taken away from us and frittered in gambling and other vices, money that could have gone to feeding and sheltering the street children, curing the sick and dying, plucking a mangy and grotesque throng from the mouth of hell. That is a lesson that needs learning. Let Napoles come.”

Senators will arrive at a decision behind closed doors. Yet the outcome will have an impact beyond their time and the halls of the beleaguered institution.

Whose arguments should the senators listen to? Should the Senate summon Napoles? Let us know in the comments section below. – Rappler.com