OSG defends ban on Cabinet members, executive officials from Senate hearings

Published October 11, 2021, 10:24 AM

by Jeffrey Damicog

Office of the Solicitor General

Government lawyers defended the decision of President Duterte to ban Cabinet members and other officials of the executive department from attending the ongoing Senate inquiry into the multi-billion-peso purchases of supplies as response to the coronavirus disease (COVID-19) pandemic.

In a statement, the Office of the Solicitor General (OSG), traditionally referred to as the government’s law firm, said the ongoing hearings by the Senate Blue Ribbon Committee are “not in aid of legislation.”

The OSG said:

“For one, there is no reference to a clear and specific piece of legislation that the investigation seeks to aid. For another, the questions propounded during the hearings do not appear to be relative to and in furtherance of any piece of legislation.

“On the contrary, during the hearings, the Senators grill and treat the resource persons worse than criminals. Their obvious intent is to identify persons accountable for alleged irregularities which existing laws already penalize.

“But there are laws that provide for the manner of their prosecution and conviction which, pursuant to the Constitution and doctrine of separation of powers, are within the domain of the Executive and Judiciary, not province of the Senate.”

Thus, the OSG said, the President “therefore, had to prevent the Senate from intruding into matters that fall within the jurisdiction of the courts or the prosecuting agencies of the Executive Department in order to avert an impending constitutional crisis.”

The OSG’s statement was issued in response to a recent column of retired Supreme Court (SC) Senior Associate Justice Antonio T. Carpio who criticized the President’s directive.

Carpio pointed out in his column that the SC unanimously ruled in the 2006 landmark case of Senate vs Ermita that “when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ xxx, the appearance is mandatory xxx.”

He also said that the only ground that the President can invoke in barring Cabinet members and executive officials is through executive privilege when the subject of the inquiry involves national security, military or diplomatic secrets, or to conversations and correspondences between the President and his Cabinet members or executive officials.

The OSG said the President’s directive is consistent with the 2006 SC ruling.

“Assuming these hearings are being conducted in aid of legislation, there is nothing in Ermita that categorically declares the lack of power of the President to bar his Cabinet members and other executive officials from attending Senate inquiries,” it said.

It also said:

“Apart from matters involving national security, military, or diplomatic secrets, department heads are likewise exempt from such appearance on the ground of ‘deliberative process privilege.’

“Indubitably, the deliberations among the President, DOH (Department of Health) Secretary, and IATF (Inter-Agency Task Force for the Management of Emerging Infectious Diseases) on these procurements are considered privileged communications. These form part of the executive privilege that ‘attach[es] […] to deliberations comprising part of a process by which governmental decisions and policies are formulated.’”

In a memorandum dated last Oct. 4, the President directed all officials and employees of the executive department to no longer appear before the hearings of the Senate Blue Ribbon Committee “effective immediately.”

“Instead, they shall focus all their time and effort on the implementation of measures to address the current State of Calamity on account of COVID-19 (coronavirus disease), and in carrying out their other functions,” the memorandum stated.

Lawyers’ groups have urged the President to recall his memorandum.

The Integrated Bar of the Philippines (IBP) said: “It is only by granting our Congress free access to information that we can empower them to formulate policies that fully reflect the will of our people.”

The Philippine Bar Association (PBA), on the other hand, said the President’s directive “constitutes a clear violation of our Constitution.”