IN his weekly public address last Monday, President Duterte directed his Cabinet members to clear with him any invitation to appear emanating from the ongoing Senate investigations. He made it clear that if he thought that the purpose of the Senate invitation was useless, then he would stop the invitees from the executive branch from attending.

Senate blue ribbon committee chairman Richard Gordon reacted by saying that it was the President’s prerogative to prevent the latter’s officials from attending the Senate hearings.

In my legal opinion, both are wrong. This is already a settled issue which was decided by the Supreme Court way back in 2006 in Senate v. Ermita, GR 169777

GR 169777 was actually a consolidation of six similar petitions for certiorari and prohibition that were lodged before the Supreme Court, questioning the legality and constitutionality of Executive Order 464 issued by President Gloria Macapagal Arroyo.

GR 169777

The Senate of the Philippines, represented by 15 sitting senators at the time, was the petitioner in the first case against Executive Secretary Eduardo Ermita in his capacity as the alter ego of President Arroyo.

The second petition was filed by Bayan Muna and Courage while the third was caused by the late former solicitor general Francisco Chavez. The petitioners in the other three cases were the Alternative Law Groups Inc., the officers of the Integrated Bar of the Philippines, and the PDP-Laban party.

EO 464 was primarily the offshoot of the investigations being conducted in September 2005 by the Senate committee of the whole on the allegedly anomalous North Rail project undertaken by the North Luzon Railways Corp. with the China National Machinery and Equipment Group. Executive officials were summoned by the Senate to serve as resource persons in its hearings. The Senate committee on national defense and security likewise issued invitations to high-ranking officers of the Armed Forces of the Philippines.

With the onslaught of invitations coming from the Senate, Arroyo issued EO 464 on Sept. 28, 2005, ordering that “all heads of departments of the executive branch of the government shall secure the consent of the president prior to appearing before either house of Congress.” The EO invoked the principle of “executive privilege” in restraining the listed officials.

In coming up with the decision, the Supreme Court revisited a case decided in 1950, Arnault v. Nazareno, where the court already recognized that the power of inquiry is inherent in the power to legislate. The court emphasized that “this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the court therein ruled, is co-extensive with the power to legislate. The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.”