Legislative inquiries and principle of public accountability
Executive privilege must be based on national security, state, or diplomatic secrets. The claim must not be capriciously exercised as to the same cannot impede public accountability as this would defeat the principle of separation of powers and checks and balances
Published in Daily Tribune on October 7, 2021
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The Senate’s Pharmally probe led to some of the following recent developments: 1) A memo from the President prohibiting Cabinet officials from attending the Senate probe; 2) An order by the President to uniformed personnel to ignore any orders from Senate to enforce subpoenas, and just recently; 3) a warning from the President to jail senators who will cite Cabinet Executives in contempt during the proceedings. Some of you may have questions on the propriety of these developments which is a perfect segue to discuss the power of inquiry of Congress.
Section 21 of Article VI of the 1986 Constitution provides for the power to conduct legislative inquiries in aid of legislation while Section 22 of the same Article provides for the Power of Congress to conduct inquiries on any matter pertaining to the departments of the executive. This is known as the Question Hour.
While both are forms of legislative oversight, there are key differences that everyone should be aware of. As to the persons subject of the inquiry, legislative inquiries cover any person who is summoned via subpoena while in question hours, only heads of departments are covered. As to the purpose of the inquiry, legislative inquiries are in aid of legislation. This is done by the legislature to determine if a law needs updating, or if a new law needs to be created. As the name suggests, the purpose is to help legislature determine if there is a need to make, amend, or repeal laws while in the question hour, the legislature does not have any bill in particular but usually does this to understand an issue in connection with the Congress’ oversight function in the implementation of laws that it passed. As to when executive officials are called to testify during the proceedings, attendance is mandatory in legislative inquiries in aid of legislation while appearances of executive officials are via request, or voluntary appearance with the consent of the President. The manner by which either is conducted is determined by the rules of the respective houses of Congress. One thing is certain, either house may resort to any manner they deem fit to solicit the answers necessary for the purpose of the said inquiry.
The Pharmally probe may be argued as an inquiry in aid of legislation. The Senate Blue Ribbon Committee is investigating the procurement of allegedly overpriced PPE bought by the Procurement Service-Department of Budget and Management for the Department of Health in 2020. It may be reasoned that the investigation is an exercise of a legislative prerogative to uncover the procurement process so that the legislature may revisit the procurement law if necessary. Further, the topic of the investigation concerns itself with procurement of PPE (personal protective equipment) and not just on a specific matter or knowledge under the purview of a department. As can be noticed in the proceedings, the main subjects of the inquiry are the officers of Pharmally and the invitation of Cabinet Executives are merely incidental or corroborative to the investigation.
However, even if the inquiry is treated as a Question Hour wherein the president is granted the privilege to withhold consent for the appearance of executive officials under the claims of executive privilege. However, the executive privilege must be based on national security, state, or diplomatic secrets. The claim must not be capriciously exercised as to the same cannot impede public accountability as this would defeat the principle of separation of powers and checks and balances.
