‘Blatantly unconstitutional’: Executive officials obey Duterte memo, ignore Senate hearing

Senators warned officials of the executive department that a memo issued by President Rodrigo Duterte directing them to ignore the blue ribbon committee’s hearings would not stop it from probing the alleged corruption in the administration’s pandemic response.

The Senate’s 11th hearing on Tuesday, October 5, was the first to be conducted after Duterte made good on his threat to block Cabinet members and officials of the executive branch from committee hearings. 

In a fit of rage against the Senate, Duterte had Executive Secretary Salvador Medialdea craft a memo implementing this. Officials of the Department of Health (DOH), Government Procurement Policy Board (GPPB), Department of Trade and Industry, and Procurement Services of the Department of Budget and Management (PS-DBM) appeared to follow the memo.

Several lawmakers had wanted to pose questions to officials from these agencies, though representatives did not appear in the committee’s probe virtually or physically at the Senate. 

Senate blue ribbon committee chairman Senator Richard Gordon called the absence of officials of the executive department both “unconstitutional” and “impractical.” Duterte earlier argued that Cabinet secretaries like Health Secretary Franciso Duque III and Chief Implementer and vaccine czar Carlito Galvez Jr. wasted so much time in hearings that it was “distracting” them from responding to the pandemic. 

In Malacañang’s memorandum, Executive Secretary Salvador Medialdea cited Article II, Section 15 of the Constitution on the “protection and promotion by the State of the right to health of its people” as basis for barring officials and employees of the executive branch from attending the Senate’s probe.

Gordon questioned this as he pointed out that often, officials did not physically attend hearings but did so from their offices or homes, where they also worked. 

“It really smells like somebody is trying to cover up, at the very least,” he said. 

Senate minority leader Franklin Drilon said Duterte’s circular was likewise in “total contravention” to the Supreme Court’s 2006 Ermita ruling, where the High Court said that when the inquiry in which Congress requires Cabinet officials' appearance is in aid of legislation, the appearance is mandatory.

“I cannot see any other memorandum as blatantly unconstitutional as what we have before us,” Drilon said. 

Later in the hearing, Senator Francis Pangilinan warned officials of the executive department that if they refused to appear in the committee’s probe, senators could also raise their concerns in ongoing budget hearings at the Senate. 

“To those who are not present in today’s hearings, we will see you in the budget hearings. We may raise these questions in the budget hearings…. We will see you again sometime,” Pangilinan said. 

'Gordon-specific'

During the hearing, Senator Panfilo Lacson, along with Drilon, joked that Duterte’s circular was a “Gordon law” or “Gordon memo” because it appeared to only apply to the Senate panel’s hearings on the government’s pandemic purchases. 

In contrast, Duterte’s memo did not bar officials of the executive departments from attending the hearings being conducted at the counterpart House committee on good governance and accountability.

The hearings at the House amplified the Duterte administration’s arguments for the most part. The House’s hearing wrapped up on Monday, October 4, with most lawmakers echoing Malacañang’s claim that “no corruption” had taken place in its dealings with Pharmally Pharmaceutical Corporation. 

Drilon said, “On a serious note, this has all the red flags of unconstitutionality. It only covers the Senate, only covers the blue ribbon [committee]. It doesn’t cover other blue ribbon hearings, but only this blue ribbon hearing.” 

On Monday, October 4, the Philippine Bar Association expressed grave concern over Duterte's moves, saying it "upsets our systems of checks and balances and transgresses the doctrine of separation of powers" among the three branches of government. It urged Duterte to immediately recall his order.

Gordon earlier condemned Duterte's order to issue such a memo, saying it would provoke a "constitutional crisis." – Rappler.com

Sofia Tomacruz

Sofia Tomacruz covers foreign affairs and is the lead reporter on the coronavirus pandemic. She also writes stories on the treatment of women and children. Follow her on Twitter via @sofiatomacruz. Email her at sofia.tomacruz@rappler.com.

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