Gloria's gag order unconstitutional (philippines)

[ken hanly <northsunm@xxxxxxxxx>]

This will enable the Senate to procede with
investigations that were stymied by an inability to
call witnesses from Armed Forces, police,and
government. This decision may have an impact on two
officers who were courtmartialed for appearing before
senate against the orders of their superior who
invoked the executive order. Since the Supreme Court
declared the powers used by the superior as
unconstitutional the court martial seems to have no
basis.




EO 464 unconstitutional
SC: Only dep?t heads need Arroyo?s permission


--------------------------------------------------------------------------------





BY EVANGELINE DE VERA

THE Supreme Court yesterday unanimously declared
constitutionally invalid several provisions of
Executive Order 464 and upheld the right of Congress
to compel the appearance of officials from the
Executive department before congressional inquiries
and hearings in aid of legislation.

"The infirm provisions of EO 464? allow the executive
branch to evade congressional requests for information
without need of clearly asserting a right to do so
and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of
Congress to conduct inquiries in aid of legislation is
frustrated," the SC said in the 52-page en banc
decision penned by Associate Justice Conchita
Carpio-Morales.

All justices concurred with the decision, except for
Senior Justice Reynato Puno who was still on leave
following the death of his wife, Supreme Court clerk
of court Luzviminda Puno.

Voided were Sections 2(b) and 3 of EO 464.

Section 2(b) states that those covered by the order
are:

* Senior officials of executive departments who in the
judgment of the department heads are covered by the
executive privilege.

* Generals and flag officers of the Armed Forces and
such other officers who in the judgment of the Chief
of Staff are covered by the executive privilege.

* 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.

* Senior national security officials who in the
judgment of the national security adviser are covered
by the executive privilege.

* "Such other officers as may be determined by the
President."

Sec. 3 states: "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."

The tribunal said these provisions lend presumptive
authorization to officials who would invoke EO 464,
which is contrary to the exceptional nature of
executive privilege.

Presidential chief of staff Michael Defensor said
Solicitor General Antonio Eduardo Nachura would review
the ruling and prepare Malacañang?s motion for
reconsideration.

Until then, he said, the Palace has no choice but
comply with the decision and stop invoking the order.

The Supreme Court said the power to invoke executive
privilege should be limited to the President or to the
Executive Secretary.

"The privilege being an extraordinary power must be
wielded only by the highest official in the executive
hierarchy. The President may not authorize her
subordinates to exercise such power. There is even
less reason to uphold such authorization in the
instant case where the authorization is not explicit
but by mere silence," the court said.

The high court made a distinction between
congressional inquiries in aid of legislation and
those done during the "Question Hour." It said the
first should not be curbed because it is co-extensive
with the power to legislate of Congress.
Investigations during the Question Hour, on the other
hand, do not relate to specific legislation but are
directed merely at congressional oversight over the
implementation of laws.

This means that officials may invoke EO 464 only
during the Question Hour.

When Congress merely seeks to be informed on how
department heads are implementing statutes it has
issued, its right to information is not as imperative
as that of the President to whom such officials must
give a report of their performance as a matter of
duty, the tribunal said.

When Congress exercises its power of inquiry, the only
way for department heads to exempt themselves is by a
valid claim of privilege. They are not exempt by the
mere fact that they are department heads, the court
added.

"In such instances, Congress may only request their
appearance. Nonetheless when the inquiry in which
Congress requires their appearance is in aid of
legislation, the appearance is mandatory. The power of
Congress to compel the appearance of executive
officials find their basis in the principle of
separation of powers. While the executive is a
co-equal branch of legislature, it cannot frustrate
the power of Congress to legislate by refusing to
comply with its demands for information," the decision
said.

The high court affirmed the constitutionality of
Sections 1 and 2 (a), requiring all heads of
departments in the executive branch to secure the
consent of the President before appearing in any
congressional inquiry, pursuant to Article VI, Section
22 of the Constitution.

Sec. 22 states that "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."

EO 464 was issued by President Arroyo on Sept. 28 last
year, or a week after national security adviser
Norberto Gonzales was cited in contempt and ordered
detained by the Senate for refusing to answer
questions during a hearing on the P50-million lobby
contract he entered into with US law firm Venable LLP
on behalf of the Philippine government.

The consolidated petitions against EO 464 were filed
before the Supreme Court by 17 senators, the
party-list group Bayan Muna, Codal, Alternative Law
Group, Integrated Bar of the Philippines, former
Solicitor General Francisco Chavez, and the PDP-Laban
party.

During oral arguments last February, the petitioners
assailed the "all-powerful, all-encompassing" scope of
the EO such that it was being used by some officials
to shield their anomalous transactions from
congressional scrutiny.

Without the power to summon the executive officials,
the legislature?s powers to check (the executive will
become meaningless, the senators said, citing
controversies hounding the Arroyo administration such
as the overpriced $400 billion Northrail project, the
P728 billion fertilizer scam, and even the supposed
wiretapping of the President?s phone line by the
Intelligence Service of the AFP and the alleged vote
rigging in Mindanao.

Defensor said the issuance of EO 464 was aimed at
emphasizing and upholding three things: the principle
of separation of powers, the principle of executive
privilege, and observance of respect for resource
persons or anyone invited to congressional hearings.

It was based on Memorandum Order 112 signed by then
Acting Executive Secretary Catalino Macaraig Jr. on
Sept. 29, 1987, which stipulates the need for
department heads to get the consent of the President
before attending any congressional inquiry.

He said he had reservations when the EO was being
prepared. He said the Cabinet had debated it intensely
but those who favor it had the numbers.

Defensor said the EO, prepared by Cabinet lawyers, was
used to protect the Cabinet members who had ended up
being harassed in inquiries and hearings.

Defensor said the high court?s decision was not a
setback as the message they wanted to relay had been
clearly conveyed while the EO was in effect.

He said the message was that the Palace would not
allow any Cabinet member to be "pilloried, embarrassed
or insulted in the guise of an investigation which is
actually a political witchhunt."

"Whether we lose or not in the Supreme Court, we have
made that statement and we will continue individually
and collectively to stand by that conviction," he
added.

He said it would be up to individual officials to
decide on whether to attend investigations.

"There are individual members with problems who are
out to use the Senate and the avenues provided them in
the Senate to conduct a political witchhunt. If I am
invited to a certain hearing, I will attend and
participate in the deliberations. Pero pag nakaramdam
ako na nagiging political na, I will not have second
thoughts of standing up and walking out. If they will
have me arrested, that is their prerogative," Defensor
said.

Defensor said appointees, however, will continue to
seek permission from the President when they are
invited to the Question Hour.

He expressed confidence that the ruling against EO 464
would not rub on Proclamation 1017 that was used by
Arroyo in declaring a state of national emergency last
February.

"(Sa) 1017, wala akong kaba diyan. (Sa) EO 464, more
or less we saw that but 1017, I do not have even
second thoughts or uneasiness in having it decided
because everything there was constitutional," he said.

Press Secretary Ignacio Bunye said Congress should not
take the ruling as a license to continue harassing
public officials or pushing for specific political
agenda in the guise legislative inquiries.

Bunye said instead of engaging in witchhunt, lawmakers
should use their time wisely by working on the passage
of important bills.

"We hope, further, that Congress time is put to better
use to finally approving the budget and working on
other urgent legislation that have long been on the
table like the anti-terror and the ethanol bills," he
said.

The Armed Forces said they it would wait for the
interpretation of the defense department of the
court?s ruling before it allows officers to appear in
congressional hearings.

"If there is no legal constraint (for officers to
testify), we have no choice but to follow?Whatever the
court orders, we will follow," said Maj. Gen. Jose
Angel Honrado, AFP spokesman. ? With Jocelyn
Montemayor and Victor Reyes