Cabinet members in Senate probes now need Duterte’s approval, but experts say the president can't ‘defy Congress'

With investigations into the alleged anomalies on the government’s pandemic spending underway, President Rodrigo Duterte has stepped into the fray by saying that cabinet secretaries will now need his say-so before they attend the Senate hearings.

“I will require every Cabinet member to clear with me any invitation. And if I think that walang silbi except to harass and be berated in front of the republic, hintuin ko na ‘yan at pagbawalan ko na. You can cite the person in contempt pero ako na magsabi na ako ang may utos na hindi mag-attend. I think I can do it as President,” he said on his weekly taped public address aired Sept. 14.

Though the president as the country's chief exectuive has the power of control over the executive branch, some experts are saying that the order may be a form of overreach or abuse.

What Executive Order No. 464 says 

Duterte’s plan brings to mind the controversial Executive Order No. 464, which was issued by former president Gloria Macapagal-Arroyo in September 2005 that barred then government officials from appearing at any congressional probes regarding the National Broadband Network (NBN) deal with ZTE Corporation in China. 

Arroyo, however, revoked the EO in 2008 after much public outrcy and mounting calls for her resignation.

So, why is Duterte’s plan considered to be controversial, despite his executive privileges? 

“The president can do this for what is called question hour but not for a legislative investigation,” Ateneo School of Government Dean Tony La Viña told PhilSTAR L!fe. “So, the answer on the Pharmally and similar investigations, the president cannot do that and the senate can compel officials to testify.”

Meanwhile, University of the Philippines Constitutional Law Professor John Molo said that “Presidents don’t have carte blanche (or blanket permission) to defy Congress.” The only exemption, according to the professor, is the use of Duterte’s “executive privilege.”

Molo’s statement on the act of “defying Congress” can be traced back to Article VI of the 1987 Constitution where it is stated the Senate or the House of Representatives “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."

“The inquiry is about billions that may have been misappropriated. Why would details of potential misconduct be the subject of presidential privilege,” Molo added. 

Only a ‘mere question hour?’

Despite this, Chief Presidential Legal Counsel Salvador Panelo on Wednesday morning, Sept. 15, said the ongoing Senate hearings are a mere question hour and not an investigation.

On the recent directive of President President Duterte

Chief Presidential Legal Counsel Salvador Panelo: Critics have been citing the case of Senate vs. Ermita in questioning the recent directive of the President for members of the Cabinet... pic.twitter.com/ADavFHwjDu

— The Philippine Star (@PhilippineStar) September 15, 2021

“They may have not fully appreciated Senate vs. Ermita, the subject matter of which is Executive Order No. 464 (EO 464) issued by then-President Macapagal-Arroyo, that was only partially invalidated by the High Court,” he added.

However, not appearing in a congressional hearing, according to La Viña, “can lead to a constitutional crisis.”

Senator Leila De Lima’s statement from detention on Wednesday afternoon, also echoes La Viña’s statement that Duterte’s “expected” plan is “illegal.”

“Duterte’s gag order on Sec. Duque and other Cabinet members, preventing them from attending the Blue Ribbon Committee hearing is expected. It was only a matter of time before Duterte resorted to an illegal action to prevent the unraveling of the truth,” she said.

Molo also said that the Senate has "its own powers plus a Supreme court ruling confirming it.

"Two branches of the government can’t be overruled by the whims of one man,” he added.

Find out more about Executive Order. No. 464 here.