I was reading the decision of the Supreme Court on EO 464 (go read it here, it is very easy to read, except for the footnotes), and I can’t help but comment on certain points. Bear with me since this is rather haphazard. I will make a comment later.
The decision, written by Associate Justice Conchita Morales, began by stating the following:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: “Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.”
History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.
By the last line alone, we know how the decision will go. The decision then began stating the facts of the case in chronological order, and it quoted the contents of the controversial EO, which I reproduce here:
SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, 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.
When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. – The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:
1. Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
2. Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).
3. Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
4. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
5. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).(b) Who are covered. – The following are covered by this executive order:
1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
2. Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
3. Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
5. Such other officers as may be determined by the President.SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)
After stating the facts, the decision began its inquiry whether the prerequisites of a judicial review of the case are present. The respondents, as represented by the Solicitor General (Alfredo Benipayo at that time, now Nachura), claim that all the petitioners have no legal standing, and thus the petitions should be dismissed for lack of merit. The Court saw otherwise, declaring all but one petitioner have legal standing.
As for whether there is an existence of an actual case or controversy, look how the Solicitor General argued that there is none:
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her consent or prohibited the appearance of the invited officials. These officials, they claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited their attendance. Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the President’s consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
You see, it is the habit of Gloria Arroyo to pass the blame; the argument presents those officials barred by the EO as the ones who had fault – merely communicated to the Senate that they have not yet secured the consent of the President. Nope, they did not attend not because Arroyo prohibited them; they just haven’t secured her consent. I would not be surprised if consent was not given at all.
The decision’s answer to this argument was powerful:
The Court finds respondents’ assertion that the President has not withheld her consent or prohibited the appearance of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress.
Precisely the reason why the said EO was issued – to prevent executive officials from attending legislative inquiries. Deliberate withholding of consent or express prohibition is unnecessary; the EO PREVENTS THEM FROM ATTENDING LEGISLATIVE INQUIRIES. That’s the intended effect of EO 464.
OK, the decision upheld Section 1 and Section 2(a) on the grounds stated in Article VI, Section 22. In comparing Sections 21 and 22 of the said Article, the decision quoted from the Journal of the 1986 Constitutional Commission. The decision states:
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question hour.
And subsequent discussion states that the two inquiries are different in nature, and that attendance in inquiries in aid of legislation is compulsory, while attendance in the question hour is not. And EO 464’s sections 1 and 2a are valid insofar as the question hour is concerned. It has one caveat, however:
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.
On the legality of Section 3, I leave that to DJB, who has already blogged on it.
A recent comment to the previous post lamented the decision, calling it rotten, using the analogy of a rotten apple – who’d want a rotten one? I advanced, in reply, another analogy: if a trader sells you an apple with the rotten portions chopped off, would you buy it? The courts can invalidate a law in part and in full, and that’s what the Court did in this instance, like chopping off the rotten parts of an apple. And another friend commented that the decision seems like designed to please everybody.
No, I don’t like an apple with rotten part chopped off. A rotten apple should be thrown away.
What of the Executive Power “of Control” over executive officers (Sec. 17, Art. VII) and “of Command” over military officers (Sec. 18, Art. VII)?
These are awesome Executive Powers, don’t they have any weight at all?
Can these powers of a co-equal be just as easily superseded by the authority to inquire “in aid” of the Power to Make Law?
Incidentally, why rely on the concept of a “Executive Privilege” as defined by U.S. precedents and law books on the U.S. Constitution?
I think these citations are irrelevant, inapplicable, since the U.S. Executive does not possess the “Power of Control,” claiming the exercise of “control” over executive officers to be merely part of a nebulous (and often controversial) “Executive Privilege.”
I suppose “power” cannot be compared to “privilege.”
A “Question Hour” and the meaning of the term “interpellation” belong to rules that govern a parliament, a Prime Minister removable by a majority–not to a presidential system such as ours.
If the Legislative is now recognized to possess the authority to “summon” (synonymous to “request”?), tantamount to the Power of Control over the “alter ego” of the Executive under the congressional authority to inquire “in aid of legislation” and to “interpellate,” is there a need for us to shift to parliamentary from presidential?
The Supreme Court in it decision and the 1987 Constitution say we are now–a sort-of half-way parliamentary with officers of an inutile Executive sort-of answerable to whims of a co-equal yet omnipotent Legislative.
And with the Legislative doing all the “investigation” it can think of, do we still need to have (and spend millions for) the services of a constitutional “investigator,” the Ombudsman?
That’s the point – the executive has awesome powers! The Congress can only make laws; it cannot stop the executive from doing what it wants. The Charter was designed that way so that abuses can be stemmed.
There is no question hour per se, the decision just used that as an analogy.
Bernas made a good explanation on the decision. You might want to read it.
But the Legislative Power and the Executive Power are Powers claimed that the Sovereign merely delegated to agencies of government it created.
So, what of the RIGHTS the Sovereign retains and, under Sec. 21, Art. VI, expressly commands that: “The rights of persons appearing in or affected by such [legislative] inquries shall be respected”?
One of these retained “rights” Arroyo fall guys (citizens, nonetheless) will, of course, surely implead is the valued privilege against self-incrimination or “testimonial compulsion”–“a protection of the innocent though a shelter for the guilty.”
Can a Power the Sovereign merely delegates or lends to Government nullify a “right” the Sovereign invokes for protection?
Arroyo’s fall guy can be cited for contempt (and punished by the Court and not by the Legislative), but the fall guy, a mere “subordinate,” cannot be compelled or coerced to give information received “in confidence” from a “superior.”