Statement on Recent Verbal Directives of President Rodrigo Roa Duterte

“The theory of the separation of powers is designed by its originators to secure action at the same time to forestall overaction which necessarily results from undue concentration of powers, and thereby obtain efficiency and prevent despotism. Thereby, the “rule of law” was established which narrows the range of governmental action and makes it subject to control by certain legal devices”.

People v. Rosenthal
G.R. Nos. L-46076 & L-46077, 12 June 1939

The Philippine Bar Association, the oldest national organization of lawyers established in 1891, views with grave concern verbal directives recently made by President Rodrigo Roa Duterte in connection with the ongoing Senate Blue Ribbon Committee investigation on various alleged anomalous transactions amounting to billions of pesos, in the midst of  a pandemic, principally involving the Department of Health, the Procurement Service of the Department of Budget and Management and an alleged favored supplier. 

First, we are of the considered view that the directive of President Duterte, acting as Chief Executive, directing officials of the Executive Department to disobey summons issued by the Senate upsets our system of checks and balances and transgresses the doctrine of separation of powers among the three (3) branches of government under our Constitution. 

The directive is detrimental to our people exacting public accountability from officials of the Executive Department, through our duly elected representatives in the Senate Blue Ribbon Committee exercising their Constitutional power of legislative oversight.  That the ongoing investigation focuses on alleged anomalies in the use of huge amounts of public funds, during a pandemic that has cost countless Filipino lives, makes the quest of public accountability of vital importance. 

It is in these times of great need that we express our agreement with President Duterte that there should not be a “whiff of corruption” in government, particularly in the use of our scarce resources to address our people’s pressing needs in these most challenging times. Let the ax fall where it may.

Second, the directive of President Duterte, as Commander-in Chief, for the Armed Forces of the Philippines and the Philippine National Police and the uniformed services to ignore warrants of arrest issued by the Senate is equally concerning. We view the verbal directive as an undue impairment of Legislative prerogatives and violates the doctrine of separation of powers. The Senate has the power to enforce its own processes in accordance with the Rules of the Senate governing its legislative investigations which is recognized under our Constitution and settled jurisprudence. It is an important part of our system of checks and balances

Instead of upholding professionalism in the ranks of our military, police and the rest of the uniformed services by shielding them from partisan politics, the directive unjustifiably reduces them into political pawns used as shields against what is perceived as political attacks. The directive is a disservice to the principle of civilian supremacy over the military. We should be mindful that an unlawful order invites disobedience and challenge.  

 We remind everyone that it is of utmost importance for us all to recognize that the principles involved in the soundness and validity of these directives are drawn from our Fundamental Law that serves as the bedrock of an orderly society. We enshrined these fundamental principles in the Constitution that we ordained, as a sovereign people, to define how power shall be properly exercised by the government of the day. 

We, the sovereign Filipino people, divided and distributed power among the three (3) branches of government to prevent tyranny and the rise of absolute power that corrupts absolutely. We put in place a system of checks and balances to prevent the abuse of power by any branch of government and to ensure public accountability. We gave the President, Commander-in-Chief powers to embody civilian supremacy over the military for the defense of our country and people, and not for it to be used to serve political ends.  

We earnestly appeal for calm, sobriety and cooperation among our leaders. 

We appeal for President Duterte, a brother in the legal profession, to IMMEDITELY RECALL his twin directives that in our view constitute clear violations of our Constitution.

We demand for all politicians not to trifle with our people’s Constitution in the political games they play.

We humbly remind all our leaders, both elected and appointed, that they are all mere transients in power and that they are public servants, first and foremost — who hold office to be in the service of the Filipino people. 

We call on all our leaders to have a long view of events that unfold while in public office – a view that seeks to build upon the institutions that we, as a people, established and that they, for the moment, occupy. 

We must all stand and denounce any act of political expediency that erodes the Rule of Law. 


It is a fundamental principle flowing from the doctrine of separation of powers that under our constitutional system, the powers of government are divided and distributed among the three (3) coordinate and substantially independent branches: Legislative, the Executive and Judicial. Each of these branches of government derives its authority from the Constitution which, in turn is the highest expression of the popular will, even higher than the election of people to occupy government positions created under the Constitution. Each branch of government has exclusive cognizance of the matters within its jurisdiction and is supreme within its own sphere. [People of the Philippine Islands, et al. v. Vera, et al., 65 Phil. 56;  see also Angara v. Electoral Commission, 63 Phil. 139.] 

The power of legislative inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. 

The legislative oversight function, exercised through the conduct of Congressional investigations, may be facilitated by compulsory process (including the issuances of summons, subpoenas and citations for contempt) in accordance with its rules and to the extent that the inquiry is conducted in pursuit of legislation. For a better understanding of the power of legislative inquiry, please see:  Arnault v. Nazareno, G.R. No. L-3820, 18 July 1950 and Bengzon vs. Senate Blue Ribbon Committee G.R. No. 89913, 20 November 1991.

In 2006, the Supreme Court, through a decision penned by Justice Conchita Carpio-Morales, passed upon the validity of Executive Order No. 464 (E.O. 464) issued in September 2005 (at the height of several Congressional investigations which included alleged anomalies in ZTE deal, North Rail Project and “Hello Garci” controversy), by then President Gloria Macapagal Arroyo. EO 464 prohibited “officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval.” This exercise of the powers of the President, as a Chief Executive, is nearly identical to the directive recently issued by President Duterte. It was characterized then as a “gag order.” 

In the case of Senate of the Philippines, et al.  v. Eduardo R. Ermita, et al., G.R. Nos. 169659, 169660, 169667, 1696834, 171246 (20 April 2006), the Supreme Court categorically ruled that such exercise of Executive power is unconstitutional. The ruling of the Supreme Court is clear and unequivocal: the President cannot “frustrate the power of Congress to legislate by refusing to comply with its demands for information.”  The Supreme Court also ruled that in the event the power of legislative inquiry is abused, wherein there is a clear pattern of abuse such that rights of individuals including members of the Executive Department, they can file the appropriate cases and “the abuses may be accorded judicial sanction.” 

Hence, the Supreme Court has ruled that the proper remedy, if there are abuses committed during Senate hearings, is for the individual whose rights were violated to file the appropriate cases instead of the Chief Executive issuing a “gag order” to prevent their attendance.

In August 2006, then Chief of Staff of the Armed Forces of the Philippines (CSAFP) Lieutenant Gen Generoso Senga issued a Memorandum (before President Arroyo issued EO 464) that no AFP personnel shall appear before any Congressional or Senate hearing without approval from President Gloria Macapagal Arroyo. The public hearings at the Senate involved an investigation of the 2004 National Elections (the “Hello Garci” controversy). Despite the directive, Brigadier General Francisco Gudani and Lieutenant Colonel Alexander Balutan, both high-ranking officers of the Philippine Marines who served in “Joint Task Force Ranao” assigned in the Lanao Provinces during the 2004 National Elections, defied the directive and testified at the public hearings before the Senate.  Both were subjected to preliminary investigation prior to Court Martial proceedings which they challenged before the Supreme Court. 

In the case of Gudani vs. Senga, G.R. No. 170165, 15 August 2006, the Supreme Court ruled that had the relevant issue raised in the case been the right of the Senate to compel the testimony of said military officers, without violating the order of LtGen. Senga, the Supreme Court would have had the chance to properly rule on the constitutional issues involved. As stated by the Supreme Court, the constitutional issues raised by BGen Gudani and LtCol Balutan could have been properly adjudicated if they observed the proper procedure. It was suggested in the decision that if they were compelled by the Senate using its coercive powers, then they have a proper case before the courts such that in the end, they could have been appropriately allowed to testify before the Senate without having to defy their Commander-in-chief and superior officer. The Supreme Court eventually denied the petition of BGen Gudani and LtCol Balutan. It stated that a soldier cannot “throw off the authority of the commander whenever they supposed it to be unlawfully exercised.” 

Nonetheless, the historical fact remains that what the said high-ranking military officers perceived as an unlawful order (as in fact, key parts of EO 464 were later ruled by the Supreme Court to be unlawful for being unconstitutional) became an invitation to disobedience and challenge. 

In the current situation, consider what will happen if the Senate cites in contempt a military or police officer directed by it to enforce its warrants of arrest because said officer defied a lawful order of the Senate? Note that by obeying the recent directive of President Duterte to disregard warrants of arrest issued by the Senate, said officer is compelled to defy a lawful order of the Senate. Clearly, the unfortunate officer is unjustly caught in between the contending political branches of government. The same is true if the officer acts conversely and decides to obey the orders of the Senate to avoid being cited in contempt but ends up under arrest on orders of President Duterte.

It should be obvious that instead of being shielded from partisan politics, the directive of President Duterte squarely placed our military, police and uniformed services in the vortex of this political conflict. This presents a clear case where a strict observance of the doctrine of separation of powers is imperative. A clash between the Senate and the President foments doubt on the validity of civilian supremacy over the military as the military and police are reduced to mere pawns in a political conflict. 

Hence, the need for the Phlippine Bar Association to sound the clarion call to uphold the Rule of Law.

[DISCLAIMER: This serves as a brief legal backgrounder on some of the constitutional issues involved in the accompanying statement issued by the Philippine Bar Association. It is by no means comprehensive but offers a basic introduction to encourage further study of these important issues impacting the Rule of Law. The cited cases are available online.]