‘Duterte’s order is unconstitutional’

The President’s order prohibiting cabinet and executive officials from attending the Senate investigation in aid of legislation into the Procurement Service of the Department of Budget and Management (PS-DBM) transactions with Pharmally Pharmaceutical Corp. is unconstitutional, according to Senate Minority Leader Franklin M. Drilon.

“The move is clearly unconstitutional. The President cannot prevent members of the executive branch from testifying in the PS-DBM and Pharmally hearings in aid of legislation. The Supreme Court ruled as such in a similar case in 2006,” Drilon said.

“Hindi sang-ayon at labag sa Saligang Batas na ipagbawal ang pagharap ng mga miyembro ng gabinete sa pagdinig ng Kongreso ‘in aid of legislation’ maliban lamang kung iyan ay may implikasyon sa ating national security at kung involved ang military at diplomatic secrets,” Drilon stressed.

“Ang pagnanakaw ay hindi national security issue, hindi ito military secret at lalong hindi ito diplomatic secret,” he added.

Drilon was referring to the Senate v. Ermita (G.R. No. 169777, April 20, 2006) where the Supreme Court ruled that when the inquiry in which Congress requires their appearance is in aid of legislation, the appearance is mandatory.

It was Drilon, as Senate President in 2005, that brought the case to the Supreme Court after then President Gloria Macapagal-Arroyo issued the controversial Executive Order 464 to prevent executive officials, cabinet members, and military officers from appearing before the Senate inquiry into the anomalous North Rail Project.

In the landmark ruling, the Supreme Court ruled: “(W)hen the inquiry in which Congress requires their appearance is “in aid of legislation” under Section 21, the appearance is mandatory for the same reasons stated in Arnault.”

Drilon said the Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which states 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.”

“Consistent with the Supreme Court ruling, only a valid claim of executive privilege can exempt department heads from answering questions in congressional inquiries in aid of legislation. They are not exempt by the mere fact that they are department heads,” Drilon said.

Executive privilege, the Supreme Court stated, refers to “matters involving national security, military or diplomatic secrets, or conversations and correspondences between the President and his officials”.

The former executive and justice secretary said executive privilege is limited to certain types of information as laid down in EO 464 and ruled in Chavez v. Public Estates Authority, which include Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.

The Court also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information, he noted.

“Cabinet officials cannot cite executive privilege to refuse attendance in the Blue Ribbon hearing and dodge questions necessary to ferret out the truth in the government’s anomalous transactions with Pharmally. This is an investigation in aid of legislation. It does not inquire into conversations between the President and executive officials, hence executive privilege cannot be invoked.” Drilon said.

Drilon pointed to this important aspect emphasized by the Court in Ermita: “While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. ”

Also, Drilon emphasized that the power to conduct inquiries in aid of legislation is recognized in the Constitution. Implied in that power, is the means to enforce the power of inquiry.

The Court, in the case of Arnault v. Nazareno (G.R. No. L-3820), held that “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 effect or change; and where the legislative body does not itself possess the requisite information — which is not infrequently true — recourse must be had to others who do possess it.

The doctrine in Arnault applies to persons invited by the Senate Blue Ribbon Committee. No less than the Supreme Court has recognized that “once an inquiry is established to be within the jurisdiction of a legislative body to make, the investigating committee has the power to require a witness to answer any question pertinent to that inquiry” and the Senate can hold in contempt, a person who refuses to answer. If the witness contends that the question is not pertinent to the subject matter of the, then that is a matter which only the Courts can decide.

In the present case, the Senate cited in contempt and detained Pharmally executive Lincoln Ong due to evasiveness in answering questions of the Blue Ribbon.

In upholding Congress’ contempt power, the Court cited Sullivan v. Hill  which says: If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its process may be enforced by the committee by imprisonment.”