Between right and wrong

In my 32 years as a lawyer and 10 (or 11) appearances as counsel or resource person before the Senate and the House, it was only before the so-called House “Quad Comm” that I witnessed the appalling spectacle of a counsel ordered to refrain, and then physically prevented, from talking to his client while the latter was being questioned in a legislative hearing.

This act of monstrosity was just because I was advising Ms. Cassandra Li Ong to invoke her right to remain silent, which was her idea in the first place, and which left some grandstanding lawmakers high and dry in their quest for sensationalism ahead of next year’s midterm elections.

In other hearings I had attended (Juetengate, Eleven Little Indians, Fertilizer Fund Scam, Bangladesh Bank Scam, among others), the questioning was tough, inquisitorial even, but never was my client physically isolated from his or her counsel. Worse, never were there out-and-out statements that this representation was giving the wrong advice or that I was merely out for money.

Such remarks, coming from legislators who seem not to know the first thing about constitutional rights, were unseemly and unethical (I have stronger words for them, but the DAILY TRIBUNE is a decent publication) and should be subject to the proper remedies, but that is for another time. The point is there appears to be a trend towards undermining the right to counsel during inquiries purportedly in aid of legislation, notwithstanding the guarantees both in the Fundamental Law and Congress’ own internal rules.

It may have all started with Richard Gordon. As chair of the Blue Ribbon Committee investigating l’affaire Pharmally, that sorry excuse of a statesman, when we requested to see our clients Mohit and Twinkle Dargani, who were then in Senate detention, gave the bizarre reason that the two did not need any legal counseling as they were “already adults.” Adult voters thus gave him a well-deserved drubbing in his reelection bid in 2022.

The logic (if one may call it that) given by the congressmen in not recognizing the invocation of the rights to remain silent and against self-incrimination were two: first, that Ms. Ong was not being criminally investigated; and second, that the right cannot be invoked wholesale, but only when incriminating questions are asked.

In the second instance, the fat congresswoman who is brilliant only when reading from a research paper may be right, but the right to remain silent is another matter: it may be resorted to from the beginning of any examination into any criminal activity.

The “investigation” in Section 12, Paragraph 1 of the Bill of Rights where a person may exercise the right to remain silent commences when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation, wherein questions are asked on the individual’s participation therein and which tend to elicit an admission.

These two circumstances are extant in the case of Ms. Ong. Our honorable representatives should note that Sec. 12 does not specifically refer to interrogatories done by law enforcement; the provision states that it applies to “(a)ny person under investigation for the commission of any offense.” Ubi lex non distinguit and all that.

It goes without saying, of course, that the legislature also has the constitutional prerogative to avail itself of coercive measures to compel the attendance of witnesses and to elicit their testimony. A recalcitrant witness, or someone who makes untruthful statements, may be punished with contempt and detained. That much is conceded. What is not granted by the Organic Act is the right to humiliate, coerce, browbeat and threaten witnesses to force them to talk.

Congress should not subject a resource person to verbal or psychological abuse for exercising a constitutional right. That is just plain and simply wrong. Just like a man who makes a mistake in an elevator, it is wrong on so many levels.