Executive-Legislative royal rumble

Published October 25, 2021, 12:12 AM

by Justice Art D. Brion (ret.)

THE LEGAL FRONT

J. Art D. Brion (Ret.)
Justice Arturo D. Brion

The election period has hardly started but its intensity at the national level is already palpable. One indicator is the developing tension between the Executive and the Legislature due to the Senate Blue Ribbon Committee investigation of the purchase of pandemic-related medical equipment by Pharmally Pharmaceutical Corporation. 

Trigger for the investigation is the 2020 COA Report on the Department of Health (DOH) Budget Utilization, which focuses on the DOH purchases of pandemic supplies through the DBM.  Pharmally allegedly secured P11 billion worth of negotiated contracts despite being undercapitalized, newly incorporated, and the absence of any track record in making personal protective equipment. Directly involved in the purchase was Christopher Lloyd Lao who was the DBM undersecretary until he resigned last June. 

In an initial testimony before the Senate Committee, Linconn Ong (a Pharmally executive) declined to fully disclose how Pharmally funded its multimillion pesos worth of deliveries despite its meagre paid-up capital of P625,000.  He variously mentioned that the money was loaned or guaranteed by businessman Michael Yang, a reputed friend and former economic adviser of President Duterte.  Yang has denied any active involvement and only admitted that he had introduced Pharmally to Chinese suppliers.

Complications started when Mr. Ong – invited by the Senate to participate in another investigative session – formally refused to honor the invitation.  The Senate responded by issuing a contempt citation against Mr. Ong for falsity and contempt of the Senate. Ong, in turn, filed a petition before the Supreme Court questioning the Senate’s authority to take witnesses into custody for contempt. A citation for contempt and arrest order were also issued against Michael Yang. Among those named as respondents in the Ong petition are Senator Richard Gordon and Senate President Tito Sotto.     

Further complications can arise from the testimony of Krizle Mago (Pharmally’s Regulatory Affairs head) who had also been invited by the Senate and who testified on the details of the company’s transaction with the government.  She later retracted parts of her testimony in another testimony, this time before the House of Representatives. This intervention raises the spectre of a possible conflict between the two Houses of Congress, an internal congressional rumble.  

New and deeper wrinkles markedly developed when President Rodrigo Duterte – in media exchanges with Blue Ribbon Committee Chairman Richard Gordon – publicly announced that he is barring cabinet members from appearing before the Senate without his permission. 

He alleged that the senators have been grilling witnesses for hours and wasting their time.  He subsequently dared the Senate to cut the budget of executive agencies, thus highlighting the possibility of the hostile exercise by the two great branches of government of their respective powers against each other. This possibility could raise the current developments to the level of a destructive royal rumble.  The Filipino people – caught in between, as usual – will bear the brunt and the pain that a neighborhood suffers in a street fight.     

To remind our readers, President Duterte is not yet a declared candidate for any position in the coming May 2022 elections but he will undoubtedly participate actively as people politically closest to him are candidates. He could also possibly be an active candidate given the opportunity for substitution until November 15.  In the Pharmally affair, Senate Blue Ribbon Committee Chair Richard Gordon is already a declared candidate for reelection.

Actively participating in the Gordon investigation are former Senate President Franklin Drilon, Senator Risa Hontiveros, and Senator Francis Pangilinan (who is running for Vice President, paired with presidential candidate, Vice President Leni Robredo). Another team of candidates are Senator Panfilo Lacson as presidential candidate with Senate President Tito Sotto as his running mate. 

President Duterte appears to be relying on executive privilege in banning the appearance of cabinet members before the Senate without his permission. Executive privilege, incidentally, is the authority of the President to withhold – for reasons recognized by law and jurisprudence – the disclosure of documents or information in his or in the executive branch’s possession, even against the compulsory processes of the legislative or judicial branches of government. 

Historically, presidents have been known to claim the protective mantle of executive privilege not only for himself but for his subordinates.  In the US, former President Richard Nixon invoked executive privilege for himself when he was asked to produce the White House tapes that eventually led to his resignation from office.  

A similar problem is developing, this time involving former President Trump and his former strategist, Steve Bannon, in the current House of Representatives investigation of the post-election riot at the US capitol.  Bannon has refused to testify, relying on former President Trump’s executive privilege. The House Committee is now moving to hold him in criminal contempt.

Our country is not without its own unique experience with executive privilege. Interestingly, ours (during the presidency of former President Gloria Macapagal-Arroyo) also originated from the contempt proceedings by the Senate against a refusing witness.  A petition was filed with Supreme Court (Neri v. Senate, G.R. No. 180643, 25 March 2008) to nullify the Senate’s arrest order for contempt.   Senators Drilon and Pangilinan were also parties to that case, members of the Senate that issued the contempt citation.   

The filing of a petition with the Court could possibly give rise to the sub judice rule that bars media comments on a petition’s merits, but not about factual reports of developments. Although the Court is technically an impartial and neutral party, it currently has a visible interest to protect when other branches quarrel – to see that the long overdue appointment of a 15th Justice is finally made, if only to ensure its full strength when it resolves the royal rumble. 

This narrative cannot but lead to the questions – are our leaders acting responsibly in the Pharmally affair, and how should the perennially squeezed Filipino people react? Can they just close their doors and windows and let the neighborhood rot?   

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