Executive privilege vs. Senate subpoena: Will there be a constitutional crisis?
An explainer.
MANILA, Philippines — Senators invoked the term “constitutional crisis” repeatedly during the inquiry into former President Rodrigo Duterte’s arrest and turnover to the International Criminal Court (ICC), raising questions about the limits of executive privilege and the Senate’s authority.
President Ferdinand “Bongbong” Marcos Jr.’s Cabinet secretaries declined to attend the Senate hearing led by Sen. Imee Marcos, citing executive privilege. This prompted Sen. Bato Dela Rosa, a staunch Duterte ally, to warn that the government was on the brink of a “constitutional crisis.”
Senate President Francis Escudero also used the term in a media briefing, where he discussed his decision to delay subpoenas for Prosecutor General Richard Fadullon and Philippine Air Force Chief Arthur Cordura. Escudero said he wanted to avoid a constitutional clash between the Senate’s subpoena powers and the Executive branch’s confidentiality privilege.
Legal experts Dante Gatmaytan and Tony La Viña offered insights into the concept of a constitutional crisis.
What constitutes a constitutional crisis?
Tony La Viña, former dean of Ateneo de Manila University’s School of Government, defined it as a conflict between branches of government over their respective powers and functions.
Dante Gatmaytan, a constitutional law professor at the University of the Philippines, said there is no set definition. However, it is often it as a "disruption in the system because political actors refuse to abide by the rules of the game."
“For example, what if the Supreme Court rules that the Senate has to proceed with the trial of the vice president but the Senate refuses to follow,” Gatmaytan told Philstar.com.
In this case, Dela Rosa argued that Cabinet officials snubbing the Senate hearing undermined checks and balances. Escudero’s concerns were more nuanced, questioning how executive privilege and Senate subpoenas interact as legal tools of co-equal branches.
So is there a 'crisis'?
Gatmaytan and La Viña differed on the extent of executive privilege. Gatmaytan argued that Cabinet officials could invoke privilege only for specific questions during hearings but not as grounds for outright non-attendance.
“Only then can the resource person refuse to answer,” Gatmaytan said.
He added that the Senate could issue subpoenas, hold officials in contempt, or even order arrests—though these actions could be challenged in court.
La Viña, on the other hand, countered that executive privilege is valid grounds for non-attendance. If challenged, he said it would be up to the Supreme Court to determine whether invoking privilege was justified.
He also noted that Executive Secretary Lucas Bersamin had cited the sub judice rule—prohibiting public discussion of ongoing cases—as another reason for Cabinet officials’ absence.
Both experts agreed that this situation does not amount to a constitutional crisis. “There is no constitutional crisis because one or two senators, even a committee, is not Congress,” La Viña said.
Gatmaytan added that the judiciary can intervene and solve the impasse.
Politics over legislation
Senate hearings are conducted in aid of legislation, but both Gatmaytan and La Viña doubted that any meaningful laws would emerge from Sen. Imee Marcos’ inquiry.
La Viña described the hearings as “purely political,” aimed at rallying Duterte supporters rather than producing legislation. Gatmaytan suggested that amendments to Republic Act 9851—the law underpinning Duterte’s arrest—might be proposed but believed political motives were driving efforts to scrutinize his turnover to the ICC.
“If this is a political stunt, they may not really propose legislation,” Gatmaytan said.
- Latest
- Trending
