Senate questions Duterte order barring Cabinet execs from Senate probe

Mike Navallo, ABS-CBN News

Posted at Nov 11 2021 03:28 PM

MANILA— The Senate leadership on Thursday challenged before the Supreme Court the President’s order prohibiting executive officials from appearing before the chamber's investigation on government's procurement contracts with Pharmally Pharmaceutical Corp.

In a petition, senators led by Senate President Vicente Sotto III asked the high court to void the memorandum issued on October 4 by Executive Secretary Salvador Medialdea and to immediately stop the executive from implementing it.

“The issuance and implementation of the Subject Memorandum infringes on the Senate’s prerogatives, prevents it and one of its organs from exercising its constitutional power to conduct inquiries in aid of legislation, and impedes the full exercise of the Senate’s plenary legislative power,” they said in an 81-page petition.

Other senators who filed the petition were Senate President Pro Tempore Ralph Recto, Senate Majority Leader Juan Miguel Zubiri, Senate Minority Leader Franklin Drilon and Sen. Richard Gordon, chairperson of the Senate Blue Ribbon committee which is leading the probe. 

They are backed by a Senate resolution adopted on Tuesday, November 9, which authorized and directed them to file the petition before the Supreme Court.

The Senate Blue Ribbon committee hearings have uncovered allegedly overpriced and anomalous government procurement contracts with Pharmally amounting to P12 billion. 

But President Rodrigo Duterte, who has many times defended the questioned deals, has called the hearings nothing but "investigations in aid of elections.”

Senators argued Medialdea's memorandum defies the Supreme Court ruling in Senate v. Ermita which prohibits the executive from issuing orders frustrating the power of Congress to conduct inquiries in aid of legislation. 

The said ruling stemmed from Executive Order 464 issued by former President Gloria Macapagal-Arroyo in 2005 in response to investigations on the “Hello Garci” scandal, where she was accused of colluding with a Comelec official to rig results of the 2004 national polls.

EO 464 required all heads of the Executive departments and other senior public officials to first secure her consent before appearing at the House and the Senate.

But the Supreme Court, in April 2006, said this was unconstitutional with respect to inquiries in aid of legislation as only the President may be exempted from Congress' power of inquiry.

“When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power — the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment,” the Supreme Court then said in a ruling penned by now retired Associate Justice and Ombudsman Conchita Carpio Morales. 

The high court invalidated sections 2(b) and 3 of EO 464 enumerating who are covered and requiring the President’s prior consent before officials could appear in Senate and House investigations, although it declared valid the other provisions detailing the scope of executive privilege.

In their petition, the senators said Duterte’s order, through Medialdea’s memorandum, is exactly what happened in Senate vs. Ermita.

“[T]he Subject Memorandum does exactly what Senate v. Ermita said the Executive Department could not: it directed “all officials and employees of the Executive Department to no longer appear before or attend” the Subject Hearings. There has been no greater, more blatant disregard of a categorical ruling of the Honorable Court in recent memory,” they said.

“The Senate exists, first and foremost, to make law. The Subject Memorandum is thus a threat to the Senate, as it precludes the chamber’s ability to obtain, in a timely and effective manner, information necessary for remedial and proactive legislation with regard to the COVID-19 pandemic and to prevent future irregularities,” they added.

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The senators pointed to the absence of executive officials in subsequent Pharmally hearings as proof of the “constitutional injury” they suffered and scored the President for bragging about deliberately creating a constitutional crisis in a public speech.

They also invoked the doctrine of separation of powers of three co-equal branches, arguing that the memorandum interferes, if not, obstructs the processes of a co-equal branch of government.

Duterte’s own speeches, they said, show he was objecting to the manner by which the senators were conducting their inquiry.

On a number of occasions, Duterte said he will not cooperate with the probe, dismissed the lack of outcome and insulted senators.

“[T]o allow the Executive to dictate how Congress should conduct legislative queries is no different from allowing it to tell the Honorable Court how the latter must conduct its deliberations. The Senate—as well as the House of Representatives—possesses these powers as auxiliaries to its lawmaking function. And their independence in the conduct of their powers must remain uninfringed considering that inquiries in aid of legislation are expressly granted and guaranteed by the Constitution itself,” they said.

Duterte’s order, they said, not only defies the Supreme Court’s ruling but is even worse because it does not qualify which officials are prohibited from attending and selectively targets hearings led by the senators he personally attacked.

Senators also said Duterte undermined the “foundations of our system of writs, processes and warrants” and the legitimacy of the Senate when, in effect, he made compliance with processes issued by a co-equal branch subject to his discretion.

In September, Duterte ordered the police and the military not to obey the Senate's orders to arrest those who fail to show up at the Senate hearings. 

Senators also said the memorandum deprived the people of their right to information on matters of public concern.

“The Subject Hearings are being conducted, among others, to ensure that legislation is well informed by the answers to these questions. Consistent with Senate v. Ermita, the Subject Hearings also perform an informational function—one consistent with the positive guaranty of a right of the people to information on matters of public concern under the heavily pro-accountability 1987 Constitution,” they said.

“P77 billion was given to fight the pandemic. The Senate, and in no small measure health care workers and citizens as well, is well within constitutional boundaries to inquire how the money was spent. Too many have died and suffered for it to be otherwise,” they explained.

“Due to the Subject Memorandum and the acts of the Executive Department, crucial information that can lead to responsive laws at this critical point of the COVID-19 crisis is being withheld from Congress. Similarly, the Subject Memorandum is also keeping information on matters of public concern inaccessible to the public,” they added.

Senators asked the Supreme Court to immediately raffle the petition and issue a temporary restraining order or a status quo ante order restoring the situation prior to the issuance of Medialdea’s memorandum.

This is not the first time senators went to the Supreme Court to challenge Duterte’s actions.

Senators previously questioned the President’s unilateral withdrawal from the Rome Statute which created the International Criminal Court, as well as his decision to abrogate the Visiting Forces’ Agreement with the United States.

The first petition was junked for being moot, the withdrawal from the ICC having already taken effect.

The second one is still pending although the abrogation of the VFA is suspended at the moment.

Malacañang has yet to issue a reaction to the filing of the petition.


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