SC to rule on executive privilege

February 28, 2008

Taking down Malacañang’s controversial Executive Order 464 which imposes a blanket gag order on employees of the Executive department which prevents them from testifiying in legislative inquiries is easier said than done.

Speaking to reporters, Supreme Court (SC) Chief Justice Reynato Puno said any move to abolish the controversial edict as sought by the Catholic Bishops Conference of the Philippines (CBCP) must not trample on relevant provisions of the present Constitution.

“We are hearing the (Commission on Higher Education Chairman Romulo) Neri case. In this particular case, we shall decide what communications of the President are included in the executive privilege. So it is a new issue,” Puno said.

He added the high court will resolve whether Neri can invoke “executive privilege” in refusing to attend Senate inquiries into the scandal-tainted $329-M broadband deal awarded by the government to China’s ZTE Corp.

The oral arguments in the Neri case have been scheduled for March 4.

The chief magistrate explained the tribunal’s predicament on the legality of EO 464.

“You know, the doctrine of executive privilege is in the Constitution and even the President cannot abolish it. The problem is how to delineate the parameters of the privilege,” Puno said.

Under the said constitutional provision (Art. VI,Sec.22) heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, appear before and be heard by such House on any matter pertaining to their departments.

Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance.

Similarly, under the Charter, interpellations shall not be limited to written questions, but may cover related matters and when the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Citing a “a need to prevent inquiries in aid of legislation from being used for partisan political purposes, disrupting diplomatic relations with foreign government, and weakening the stability of the State (and) impeding the efforts of the government to generate and attract foreign investments” EO 464 requires that “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.”

Also, under the terms of EO 464, “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.”

Malacañang, overjoyed at the bishops’ pastoral letter favoring President Arroyo, yesterday claimed it is seriously considering the recommendation of the Catholic Bishops Conference of the Philippines (CBCP) to abolish EO 464 , even as the Palace knows that its total abolition is not feasible.

Executive Secretary Eduardo Ermita said Mrs. Arroyo ordered the creation of a legal team which will study the possible abolition of EO 464 as recommended by the CBCP. The members of the legal team are Justice Secretary Raul Gonzalez, Chief Presidential Legal Counsel Sergio Apostol, Solicitor General Agnes Devanadera , Deputy Executive Secretary for Legal Affairs Manuel Gaite and the Office of the Government Corporate Counsel.

The legal team started its review yesterday afternoon and is expected to submit its recommendation to Mrs. Arroyo anytime today, Ermita said.

But this early, DoJ chief Gonzalez,already took the view that EO464 cannot be abolished since there are laws and jurisprudence to be considered, saying that certain information requires confidentiality, among which are trade secrets and matters of national security.

Gonzalez said disclosure of state secrets by a public officer is punishable under the Revised Penal Code, Article 229.

At the same time, the Palace will initiate a dialog with the members of the CBCP to discuss the sentiments of the Church regarding alleged corruption in the government through the anomalous ZTE-NBN deal.

“ We will exchange views with the bishops. We want to know their sentiments and recommendations, and if they are as yet not satisfied with our reaction to their official statement. The government will also explain some issues to them,” Ermita said.

The chief Palace aide also expressed elation that the CBCP did not join the resign call. Ermita said he hopes that with rejection of the bishops of the Arroyo resignation call, the Church will help in cooling the heat of the current political tension.

“ I hope it will result in that, because the Church wields a lot of influence over the people. We are very hopeful that it will help the people in discerning things ,” Ermita said.

Earlier, Press Secretary Ignacio Bunye said that Malacanang “ welcomes the statement of the CBCP which exhorts everyone to fight corruption and search for truth. The recommen-dations addressed to the executive, the legislature and the media certainly deserve very serious consideration.

“We thank the CBCP for not succumbing to the propaganda of rabid oppositionists who are bent on overturning the gains of our strong economy. The nation deserves a respite from frantic, irrational and dangerous calls for the President to resign, while the real truth has yet to be established by the court of law,” he added.

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