Legal maneuvering

The lawyer Rodrigo Duterte, speaking as President, has ordered his Cabinet members not to attend the Senate blue ribbon inquiry into the highly irregular use of pandemic response funds and, for good measure, ordered the police and military not to aid the Senate in seeking the arrest of officials held in contempt for not cooperating in the probe. He warned of a constitutional crisis and appeared ready to push the state to the precipice, saying it would not be of Malacañang’s making.

But the pushback from other men and women of the law—alumni of the country’s top universities and led by retired Supreme Court senior associate justice Antonio Carpio, whose acceptance of the President’s challenge to a debate on the West Philippine Sea months ago caused him, the President, to back down—was swift. The law alumni of the University of the Philippines and Ateneo de Manila University cited the Supreme Court ruling that affirms the Senate’s, and even the House of Representatives’, authority to question members of the executive branch in aid of legislation.

They said it was the President that was creating “an unnecessary constitutional crisis in the middle” of the COVID-19 pandemic. They issued the reminder that in Senate v. Ermita, the Supreme Court ruled that the appearance of members of the executive branch was “mandatory” if demanded in congressional inquiries. (“While the executive branch is a coequal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information,” the high court said.) They pointed out, correctly: “If the President has nothing to hide, there is no reason for him to stop the investigation.”

Other lawyers, including Senators Franklin Drilon and Leila de Lima, described Mr. Duterte’s orders to Cabinet members and the police and military as unconstitutional and illegal.

But the President is fixated on the Senate blue ribbon inquiry that, after 10 hearings, has exposed how the undercapitalized Pharmally Pharmaceutical Corp. managed to corner at least P10 billion in medical-supply contracts from the government with more than a little help from his former economic adviser, the Chinese national Michael Yang. He has zeroed in on and threatened the committee chair, Sen. Richard Gordon, with all manner of suits, and, as well, threatened the other leading interrogators with dirt. In contrast, the House committee on good government and public accountability, which conducted parallel hearings on Pharmally’s role in the Department of Health’s transfer of P42 billion to the Procurement Service of the Department of Budget and Management, received a downright affectionate gaze.

The committee chaired by Diwa Rep. Michael Aglipay ended its inquiry on Monday after former Pharmally regulatory officer Krizle Grace Mago made an appearance and recanted her earlier testimony at the Senate that the private firm had swindled the government by selling face shields with tampered production dates. The weary observer may find the thickening plot all too predictable: Mago makes a damning testimony at the Senate. She becomes incommunicado to the senators. She is taken into “protective custody” by the House. She testifies that what she told the Senate — under oath and in the safety of her home — was “a pressured response.”

In his public address last week, the President trotted out his spokesperson Harry Roque to back his position that Cabinet members should ignore summonses from the Senate blue ribbon committee. The former human rights lawyer rose to the occasion and described the Senate inquiry as “a witch-hunt” and “a persecution” conducted “in aid of election,” and declared his principal as empowered to block appearances in congressional hearings in the course of “exercising the inherent police power of the state to promote public health.”

But in the blow-hot, blow-cold style that the Palace employs in shape-shifting according to the temperature of the moment, Roque is now trying to get on the good side of business groups that called for full cooperation from government officials in the Pharmally probe. To big business’ call for “a full and fair accounting” of how taxpayer money was spent in the government’s pandemic response, Roque now says that Cabinet members are willing to attend Senate inquiries for purposes of transparency. Nevertheless, his principal announces that a memo has been issued formalizing the ban.

Meanwhile, the emergence of certain counsel in this continuing saga indicates the level of the need for legal maneuvering. Roque has long since outdone himself. Ferdinand Topacio is lawyering for Pharmally director Linconn Ong (detained by the Senate sergeant at arms for being evasive) and Raymond Fortun for Yang (for whose arrest two warrants have yet to be served).