Constitutional crisis? Not really

The Bayan Muna Partylist representatives were reported as expressing a reasonable fear that a constitutional crisis is looming. They pointed to the reported instruction, verbally given by President Rodrigo Duterte, in a shotgun manner, to his men. It was clear though that the president really intended his Cabinet members not to attend the legislative investigation conducted by the Blue Ribbon Committee of the Senate, unless cleared by him. The Bayan Muna leaders felt that the president’s directive could trigger such a constitutional crisis. Why so?

In the organization of the government, the different departments are within the executive. Their heads of offices like Health Secretary Francisco Duque and Menardo Guevara of the Department of Justice, are the members of the Cabinet. They are adjuncts of the president and as such they are his alter ego. The actions they take and the decisions they make for their respective department, unless disapproved, disregarded, overturned, or reprobated by the president, are presumed to carry his imprimatur. This is the rationale for the doctrine of “qualified political agency” under which all department heads are deemed agents of the chief executive.

When department secretaries attend Cabinet meetings, they share with the president of the republic all information needed in their governance and administration of their respective departments as they receive directives, instructions and orders issued by the president for their compliance and implementation. All such communications, data, information, and knowledge taken up and discussed in the Cabinet meetings are considered to be within the control of the president. This is called “executive privilege”.

The Supreme Court defines this term “executive privilege” as the power of the president to withhold certain types of information from the courts, Congress, and ultimately the public. Not all pieces of information though are privileged. Only certain types are. For our understanding, let us be guided by the words of Fr. Joaquin Bernas. This eminent constitutionalist said that “those information which are of a nature that disclosure would subvert military or diplomatic objectives, or information about the identity of persons who furnish information of violations of law, or information about internal deliberations comprising the process by which government decisions are reached” are within the executive privilege. The president may withhold releasing this kind of info.

The president can, and has in fact, asked his Cabinet members (and those previously subpoenaed by the Senate) to dodge the Blue Ribbon investigation. In the present situation, he did not exactly invoke “executive privilege” but through his play of words, he directed his subalterns to shun the Senate invitation. From where I sat, I could tell that his pronouncement seemed to carry threats and even possible reprisals aimed at Sen. Richard Gordon. Unfortunately, this mantle of executive privilege is not for the president to avail of in this situation. Neither will his threatening posture work. Not even can President Duterte say that Secretary Duque is covered by the doctrine and for which reason he is not allowing the health secretary to attend the blue ribbon committee meeting.

This investigation that is being conducted by the Senate Blue Ribbon committee is nothing about security of the state or involving diplomatic policies. As it has unfolded, it veers towards apparently questionable deals involving public funds in billions of pesos. This subject is certainly within the power of the Senate to investigate in aid of legislation.

In fine, notwithstanding the apprehension of the Bayan Muna of a looming crisis, such a situation is not likely to visit our politically-challenged environment, especially that the supposed threats of the president are without legal strength.