Saving the alter ego

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

Saving the alter ego
Sunday, 09 28, 2005

Last week, the going got tough for national security adviser Norberto Gonzales. So he tried to tough it out but the Senate was not impressed. Either through thoughtlessness or genuine perplexity, he failed to provide answers to very simple questions about the Venable contract: Whose idea was the contract? Who conjured the bright idea of getting private donors to foot Venable’s bill? Who steered him to Venable? Has Venable been paid for its services? How was the contract rescinded?

Gonzales provided answers that were not quite forthcoming. So he is now getting his lumps and faces the prospect of spending time in a lonely room at the Senate basement, a holding cell designed for people who show contempt for the Senate. He will be detained there under the custody of the Senate Sergeant-at-Arms until he purges himself of that contempt.

The authority to punish for contempt is a necessary incident inherent in the very organization of all legislative bodies. In case Gonzales missed the fine print, the Senate Rules of Procedure Governing Inquiries In Aid of Legislation does authorize its members to punish any witness who refuses to testify or to answer appropriate questions. The witness gets punished, too, for false or evasive answers, a fact that did not escape the senators during the hearing.

Gonzales didn’t do his homework. He responded forthwith to an invitation to appear before the Blue Ribbon Committee, in which case he appeared as an ordinary witness governed by the Rules Governing Inquiries in Aid of Legislation, Section 18 of which was the basis to cite him in contempt.

He should have invoked Rule 46 (Appearance of Cabinet Members), where the President would have prevented him from appearing or, if ever he does appear, he would have armed himself with a written request from the President to have the hearing conducted in executive session, invoking security of the State or that the public interest so requires it. (He can invoke a similar rule in the House of Representatives, if and when he is invited to clarify the same issues.)

Gonzales had it coming: he was evasive in his answers. And like many others before him - including Arnault in 1950 who refused to answer questions regarding the Tambobong Estate - Gonzales now has to suffer the indignity of being detained, until he coughs out satisfactory answers to the questions of the senators.

But the similarity of Gonzales in 2005 to Arnault, et al. ends there. Arnault, et al. were private persons who represented their own private interests in public transactions. Gonzales is a member of the Cabinet, and as a consequence is the alter ego of the President.

As of yesterday, the immediate concern of Malacañang is to have Gonzales purged of the contempt. How?

Senator Miriam Santiago says a becoming courtesy is expected from members of one branch of the government to members of the other branches. But then, again, under the present political clime, comity is out of the equation in resolving conflicts of jurisdiction. A resort to judicial review may not prosper either, in view of the proper invocation by the Senate of its Rules, and Gonzales would be hard put to prove grave abuse of discretion.

Some other solution grounded on established doctrines must be explored.

Gonzales may explore the possibility of his invoking Executive Privilege, which should be accorded to him as an alter ego of the President. Executive Privilege is the presidential prerogative of withholding information from Congress on the ground that disclosure would interfere with the exercise of executive power and the constitutional responsibilities of the president.

Under the Doctrine of Qualified Political Agency, or the Alter Ego Doctrine, the acts of a cabinet member (like Gonzales), unless disapproved or reprobated by the President, are, presumptively, acts of the President.

So far, we have not heard the President disapproving or condemning the decision of Gonzales to keep mum before the Blue Ribbon Committee. Absent that, the decision, then, of Gonzales could be imputed to the President, who enjoys Executive Privilege. Conversely, Gonzales as her alter ego may enjoy the same privilege.

Gonzales had admitted that the President knows about the Venable contract, and that in fact it is his understanding that she gave him the go-signal to pursue and conclude it. If indeed the President is involved, Gonzales could claim that disclosure or non-disclosure of the details of the contract and the circumstances surrounding its execution are protected by the Executive Privilege.

Gonzales should have taken steps to insure that when he appeared before the Senate he was the embodiment of the President, her alter ego. It follows: If the President could not be cited for contempt by the Senate for not being straightforward about the contract, so must the Senate accord the same treatment to her alter ego.

The acts or omissions of a Cabinet member are imputable to the President. Until the President declares otherwise or countermands what later turns out as a venal act committed by her Cabinet member, the alter ego enjoys the same privilege as the President’s.

It is conceded that the questions asked of Gonzales were all relevant and material to the subject of the inquiry, but he may nonetheless invoke national security concerns to bring the proceedings in camera, where he could freely give his answers away from the prying public.

A face-saving solution for both the Senate and Malacañang is for the President to allow Gonzales to appear before the Senate one more time, where -armed with a written request from the President for an executive session, which the Senate obviously cannot deny - he could invoke national security concerns. Conveniently, Gonzales can walk free after that.

But then, if that happens, the Senate would have extracted a confession from the President.


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