LET’s play a game of testy questions, which may help clarify the controversy over unauthorized vaccines against coronavirus disease 2019 or Covid-19 given to the Presidential Security Group, or PSG, and at least one Cabinet member without approval from the country’s Food and Drug Administration, or FDA, whose approval all medical and edible products distributed in the Philippines must have.
Question 1: If there is a grave threat to national security, and to address it, responding agencies have to bend or break laws, should they?
This is a frequent decision point for security, intelligence and military units everywhere.
Take Israel’s armed forces and its intelligence agency Mossad. They have rescued hostages and assassinated terrorist leaders abroad, and even bombed an Iraqi nuclear plant producing weapons-grade uranium and plutonium for the late Saddam Hussein’s nukes program.
Those acts violated international law and due process, but Israelis, their allies, and even impartial observers approved of and even cheered on those law-breaking exploits as necessary to safeguard the nation.
In those and many similar actions worldwide, depending on the gravity of security threats and the lack of effective legal means to counter them, many nations do violate statutes to defend themselves.
Question 2: Are security forces required to divulge their actions to safeguard the state and be held accountable for any illegal acts?
In general, military, police and intelligence operations are kept confidential, to avoid alerting adversaries and spare security forces from public scrutiny and political grandstanding, which may restrain them from doing what’s necessary to secure the nation.
If confidential information must be divulged, it may need to be shared in closed proceedings not made public. That’s why, for instance, intelligence funds are audited only by the Commission on Audit chairman.
However, military and intelligence units must disclose all operations to their top brass.
That’s President Rodrigo Duterte, commander in chief of the Armed Forces of the Philippines, and AFP Chief of Staff Gen. Gilbert Gapay. The two must ascertain that all such operations are effective and necessary for national security.
Hence, the AFP should proceed with its probe of the PSG vaccination, as part of normal operational assessment and accountability. General Gapay should then send the investigation report and recommendations to President Duterte and his alter ego in military matters, Defense Secretary Delfin Lorenzana.
What about public accountability?
Question 3: Should military units be subject to investigation by Congress and prosecution and judgment by the judiciary?
Under the principle of separation of powers, the co-equal legislative, executive and judicial branches of government can hold one another accountable in specific processes defined by the Constitution and other laws.
Thus, the president, the vice president and the justices of the Supreme Court, along with the ombudsman and top officials of the constitutional commissions can be unseated by Congress through impeachment. Then they can be prosecuted in court.
What about civilian agencies and the military? In general, government actions are subject to review by the courts, which can issue restraining and other orders, and in criminal proceedings, judgments and penalties. And Congress can invite state officials to testify under its lawmaking and oversight functions.
In executive-legislative disputes over hearings, Congress can petition the Supreme Court to compel agencies to testify, as senators did for the 2007 hearings on the ZTE controversy.
Back then, the magistrates ruled that Congress could compel civilian and military officials to appear in hearings in aid of legislation, and it must provide the scope and questions to be discussed. But for oversight inquiries unrelated to lawmaking the President may bar agencies from participating, since he exercises paramount oversight authority in the executive branch.
Question 4: Should President Duterte allow the PSG to testify in Congress?
Normally, President Duterte lets agencies attend congressional and court proceedings without issue. But he has barred the Philippine National Police from providing reports on killings in the anti-narcotics campaign, in which some 8,000 have died in law enforcement operations.
Now, the Chief Executive has told the PSG not to testify on its vaccines. In both prohibitions he is criticized for undermining public accountability and the rule of law, as well as human rights with regard to drug war killings. Is he?
On the narco-deaths, the Department of Justice has done a voluminous report, which should lead to the prosecution of police involved in unlawful fatalities. If charges are filed regarding, say, 100 or so deaths — a mere 1.25 percent of killings investigated — then it might show some effort to seriously address abuses and uphold the rule of law, human rights, and public accountability.
As for the PSG vaccination, this clearly falls under urgent actions needed for national security, for which violating laws may be reprimanded, but not necessarily sanctioned.
Vaccines help ensure that troops providing close-in protection to the President are not Covid-19 carriers and would not have to be excused from duties due to the disease.
The PSG should have requested special FDA permission for immunization, which it probably would have gotten. But having been done without proper approval, the vaccination could have been kept secret, like countless other security, intelligence, police, or military activities. However, the President made it public.
Now, some senators, even Duterte allies like Richard Gordon, want to grill the PSG about who supplied the vaccines without FDA approval, how they were smuggled into the country, and who administered them to the soldiers. But Senate President Vicente Sotto 3rd says it has not invited the PSG to its vaccines hearing, which will focus on the nationwide immunization plan.
Last questions: Should troops risking their lives and taking extraordinary measures to protect the President face a televised Senate grilling and be forced to implicate those who helped safeguard their health and that of the President? If so, would such treatment encourage them and those assisting them in future to do whatever is necessary for national security?
Ric Saludo is president of the Center for Strategy, Enterprise & Intelligence (CenSEI), advising on strategic, risk, and media management.
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