Friday, April 21, 2006

EO 464, the Power of Inquiry, Executive Privilege, and the Many Ways of Skinning a Cat (Part 1)

I have been studying the recent decision of the Supreme Court (click here for a copy), and the accompanying PDI commentary (no online copy yet) of Fr. Joaquin J. Bernas, S.J., whose lectures I attended while I was a student at the Ateneo School of Law, Over the next few days, I will post my own analysis on this decision leading to a fundamental thesis, that while this decision struck down key provisions of EO 464, it also gave a way out for the President to achieve the obvious purpose in issuing EO 464, which is to control information, especially controversial ones, and avoid public accountability. So, why should people be happy about it?

The decision is a consolidation of six cases filed by senators, Bayan Muna party-list representatives, Frank Chavez, the Integrated Bar of the Philippines, Alternative Law Groups, and PDP-Laban. Penned by Justice Conchita Carpio-Morales and concurred in unanimously by thirteen other justices, including the Chief Justice, the decision was generous with citations (about 109 footnotes) from American and Philippine jurisprudence and textbooks. The fifteenth member, Justice Reynato Puno, was on leave, and did not vote. While the decision is contained in 63 long bond pages, the main issue is tackled only on 25th page, as the court has to hurdle the preliminary questions on the standing of the petitioners and the ripeness of the controversy in the more than one-third of the decision. This gives the impression that this decision is well-researched and well-written. I cannot help but note that there are no concurring opinions on the issue by the other justices, which also means that the decision is thoroughly-written. and the justices found nothing more to add to the discussion other than what Justice Carpio Morales has discussed in the opinion of the court. There is, therefore, the unlikelihhod that Solicitor General Eduardo Nachura will find any good argument to ask the Court for a reconsideration of this decision.

In tackling the constitutionality of EO 464, the Court first discussed the nature of the Power of Inquiry, Executive Privilege, and then proceeded to tackle the consitutionality of each of the provisions of EO 464. Then, it discussed the Right to Information, before summing up, and concluding with the dispositive portion that says,

"WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), “Ensuring 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 Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,” are declared VOID. Sections 1 and 2(a) are, however, VALID."

To see what this dispositive portion means,after this decision has become and executory, see the quotation below:

(VALID PROVISIONS)

"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:

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);

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).

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);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(INVALID PROVISIONS)

(b) Who are covered. – The following are covered by this executive order:
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 of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;
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;
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
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. "

In other words, it is not accurate to say that EO 464 has been declared unconstitutional, because Sections 1 and 2(a) thereof were declared valid. It would be more accurate to say that only Sections 2(b) and 3 of EO 464 were invalidated. So, instead of filing a Motion for Reconsideration. the Solicitor General and all the President's lawyers should just find a way of working on Sections 1 and 2(a), in order to achieve the same purpose as that of the provisions that were invalidated. I am pretty sure, there are enough creative lawyers in the President's payroll to do this.

The key here is in the classification of information, which is a presidential prerogative. It is difficult, if not impossible, for any person to have the standing to question the wisdom of how the President classifies information. National security mandates that we have to take her word for it. Thus, if, for example, the President classifies the Northrail Project as confidential information, then all officials who got hold of documents and participated in this project could invoke Section 2(a). The Northrail Project then is placed beyond the reach of the public's right to information, and goes under the protective mantle of Executive Privilege, even if the project is rotten and full of corruption and kickback deals.

Who needs Section 2(b) and Section 3?

(Next post: the Power of Inquiry and Executive Privilege)

4 comments:

Rizalist said...

Marvin,
Look at the language: "In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding on the heads of offices ... It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege."

Thus does the Supreme Court ACCEPT the President's opinion, for "no infirmity can be imputed" to it.

Now look at the exact language of EO 464:"Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including...[i.Conversations and correspondence...ii...iii...iv...v]

Although the Court has invalidated the applicability of (2a) to those listed in (2b), it has actually upheld and perfected the applicability of (2a) to Section 1 officials (including Norberto Gonzales and the rest of the Cabinet, the Supreme Court Justices, the Comelec, and all consitutional office holders, etc.)

Why do I get the feeling that the Palace actually won a big victory here, and not lost it as the PDI editorial today gloats?

BTW, I have a Word version of the Decision and if one were to search for the words "Presidential conversations" in the decision, it might occur to one that this could be a setup for the next few decisions!

Rizalist said...

Marv,
Thanks for a great summary and analysis.

Rizalist said...

QUESTION: I don't understand something. By accepting Section (2a) so completely, is the Supreme Court saying that ALL instances of information falling into categories (2a)[i-v] ARE covered by executive privilege without having to be individually and specifically designated as such? Or are such instances only potentially covered by Executive Privilege, since the precedents that are cited involved very specific circumstances? Doesn't every new instance that only generally falls in one or more of these categories have to be further identified and justified as privileged information?

marvin said...

Rizalist,

The decision states that executive privilege must be specifically asserted. These means that for a particualr inquiry to be stopped, the executive privilege must be raised and the basis for the claim should be made. So, every new instance that only generally falls in one or more of these categories have to be further identified and justified as privileged information.