Friday, April 21, 2006

Executive Privilege Covers Information--Not Executives

UPDATE: (Apr. 22, 2006) Lawyer ALAN PAGUIA sends SMS TEXT as follows:
"Don't be fooled by the 64 page Supreme Court Ruling on EO 464. It is actually favorable to GMA. The only change is those subpoenaed must appear but they can refuse to answer by (1)claiming executive privilege; (2) stating the reason therefore; and (3) stating why it must be respected. Sections 1 and 2a were declared valid. Only Sections 2b & 3, w/c are dispensable provisions anyway, were declared unconstitutional. In other words the Supreme Court simply taught GMA's legal advisers how to continue frustrating congressional investigations by technical knockout. Talo pa rin ang taong-bayan. Walang dapat ipagsaya." --Atty. Alan Paguia

(PDF) (HTML) The Decision handed down yesterday by the Supreme Court on Executive Order 464 is the major headline today in Manila newspapers. Reacting to the announcement that the Supreme Court has partly voided E.O. 464, Presidential Chief of Staff Mike Defensor said that E.O. 464 had already served its purpose. How right he is. National Security Adviser Norberto Gonzales was on television spinning Oakwood coup d'etat fairy tales today. Fortunately for him, he is apparently in the pink of health despite claiming to be on the brink of death last September at the Senate hearing into the controversial Venable contract.

But I have just read the Decision written by Justice Carpio-Morales and pickout the following salient points:

(1) Executive Privilege is "the power of the government to withold information from the public, the Courts and the Congress." It is over such information that the Executive (the President) has the privilege of witholding information that falls under three very specific varieties: (a) state secrets; (b) informer's privilege; (c) generic privilege for internal deliberations of the President and her government officials.

(2) Both US and Philippine jurisprudence uphold the power of the President to claim executive privilege against the citizen's demands for information, which the Decision stresses covers the information itself and does not reside in the persons of the executive department just because they are in those positions. Thus the President can only cover a given official by asserting that such official is in possession of information that falls into one of the traditional categories of privilege enumerated above. But it must be done in specific cases and not in the blanket manner of EO 464.

(3) The Decision distinguished between two types of legislative power of inquiry: (a) the power of inquiry in aid of legislation; and (b) the power of inquiry in fulfillment of Congress' oversight function, found respectively in Sections 21 and 22 of Artivle VI in the 1987 Constitution.

The Decision held that when Congress is exercising oversight functions, the attendance of Executive Dept. Officials is actually discretionary, (this was the Question Hour provision); whereas, for inquiries in aid of legislation, it is mandatory unless a valid claim of privilege is made:
"When Congress exercises it power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads."
Siginificantly, the Court held that only the President, and the Supreme Court Justices themselves, as heads of co-equal branches of government, are exempt from this power of inquiry of Congress, which can only touch them through the separate power of impeachment.

(4) The Decision criticized EO 464 as "a misuse of the doctrine" of executive privilege because Section (2b) "virtually states that executive privilege actually covers persons", pointing out that "Executive Privilege, as discussed above is properly invoked in relation to specific categories of information and not to categories of persons."

(5) The Decision struck down Section 2(b) because of the above consideration, and because no specific claim of privileged information were made or established for the various persons referred to in EO 464. But it upheld Section 2(a) which contain the guidelines for the exercise of executive privilege in the future.

So the Decision leaves open the Door for what the Court considers a valid exercise of Executive Privilege, in which the President can first claim that a certain official in in possession of privileged information (with proofs or indications thereof), and thus prevent their appearance in inquiries in aid of legislation or in aid of Congressional oversight.

It is not clear now whether indeed all those military officers, like the Garci Generals can now be called by the Senate, since it is already being asserted (I think by Mike Defensor) that their non-appearance in the Senate was not under EO464, but in obedience to orders from the Commander in chief.

For me the Decision is a valuable lesson in the principles involved in the exercise of Executive Privilege.

It's about time too! The Supreme Court has a long, long way to go from the pits of its own past record of decrepitude and pusillanimity in the face of executive hubris. We await eagerly what further it has to say on the Calibrated Pre-emptive response policy, on Proclamation 1017, and on Garci's Second Petition to bury the Garci tapes.

CONCLUSION: The Decision merely instructs the President on how to properly exercise Executive Privilege, even construing Constitutionality in the order where it plainly, and improperly, tried to cover entire categories of persons. It was a "softball" decision, though it helps us all to understand the important points of principles in the debate going forward.

I was very glad to see Chief of Staff Mike Defensor sprouting pimples these days and showing his sweat, with his defiant remark to reporters that indeed, EO 464 "has served its purpose" -- after six months that the Supreme Court, in effect, let it do its dirty work, and now instructs the President on the proper approach the next time.

[To the Comment Thread: It is worthwhile reading the Decision by J. Carpio Morales. Very instructive and pretty easy going. Just tell yourself this: The Law is nothing but precision English Grammar and Composition. Ordinary, intelligent citizens should be able to read a Supreme Court decision and comprehend its basic meaning. And even blog about it]

PROTECTING INFORMATION ON THE WORLD WIDE WEB:It is perhaps appropriately coincidental that today's last session of the Southeast Asian Press Alliance (which incidentally includes participants from all over Asia including China,Nepal, Burma, Thailand, Indonesia, Malaysia, Hong Kong, Singapore, Pakistan, Vietnam, Philippines, and the United States) is on technological issues related to the safeguarding of information on the World Wide Web. Ethan Zuckerman, quite famous geek responsible for the famous "geocities" website, and now associated with Rebecca MacKinnon and Global Voices Online at the Berkman Center, Harvard University, is the feature speaker, along with some very interesting techies attending the conference, including Andrew Lih, a top honcho at the famous Wikipedia. A full report on the conference tomorrow!

30 comments:

Bernardo F. Ronquillo said...

Actually, DJB, Mike Defensor is right when he said that "EO464 has already served its purpose" and that is to stop the Senate from asking too many embarassing questions. And Malacanang was able to do this and declaring it unconstitutional now is like closing the gate after the horse has galloped out.

Mike is like asking, so what? Gloria can simply do something like it again and it will take like six months before she is stopped after damage has been done. Mike is like saying, so what if I sweat now, we've already put one, no ten, over you. And DJB, they will do it again, UNLESS THEY ARE STOPPED.

Rizalist said...

BFR--Remember how we once characterized Garci::he is like those rag dolls that owner of pitbulls and Rottweilers use to drive the dogs insane with rage. We must not let them do that to us. Mike Defensor is that rag doll. He is a provocateur the Palace uses to cause the democratic opposition to make a mistake. Be consoled! Their day is coming. There are many moves to a chess game. And if you obey the true majesty of the Law, it can be fun and the the just can win by never surrendering until something is "right".

But to restore the Rule of Law, we must restore the rule of Logic, even as we are impassioned by the foibles of our justices and the politics of a compromised Court. There must be a center of tranquility in each of us, that always ponders the heart of the Law that stands above any man.

Lord Dracula said...

Mike Defensor's comment gave us the rationale for EO 464 - it was a delaying tactic. Remember at those crucial times Gloria Arroyo was besieged in all sides, and to stem the tide, BAM! EO 464! That's what Defensor meant with the EO "has already served its purpose". And to twit and bring the Senate to its knees are just welcome bonus.

Yes, the Fortress by the Pasig will do things like EO464 again, since the citizenry (like Austero) ALLOWS them to.

baycas said...

djb, may we read on alan paguia’s take on the SC decision on eo464? i was only able to catch a little on his interview at dwiz. he was referring to a maceda vs. ombudsman on the principle of separation of powers. i don’t know if it’s Maceda v. Vasquez, 221 SCRA 464 (1993).

ricelander said...

BFR & Lord, tama kayo diyan. It's all about delaying. Another one is surely forthcoming; what's another six months or a little longer between friends?

Dean, forgive my cynicsm but I believe the legal team knew all along it was unconstitutional. Now my question: when did the EO/act start being unconstitutional-- at the time the act was consummated/implemented or at the time the SC declared it so? Ano ang guiding doctrine? I ask that question because surely if the EO was unconstitutional from the beginning, must not somebody answer for the damage/legal repercussions it engendered directly and otherwise from the very time it was deemed operational?

Now if the unconstitutionality of an act is reckoned only from the time the SC makes a declaration, then our sapantaha is correct, may kasunod na naman yan.

Lord Dracula said...

The problem, Ricelander, is that the EO is partially invalidated; so the question whether when the EO started being unconstitutional is hard to answer. But I believe that once a law/statute/order is declared with finality as unconstitutional, it starts at the time the law/order/statute was approved, published, and released. The problem here is that since only Sections 2b and 3 were declared unconstitutional, what acts committed under this EO should be subject to court action?

The Fortress by the Pasig knows it was wrong, but what the heck! They got away with it, and will not even think twice of doing it again. I agree, Ricelander, may kasunod yan.

marvin said...

"So the Decision leaves open the Door for what the Court considers a valid exercise of Executive Privilege, in which the President can first claim that a certain official in in possession of privileged information (with proofs or indications thereof), and thus prevent their appearance in inquiries in aid of legislation or in aid of Congressional oversight."

Why do I get the feeling that this decision is actually a legal opinion on how to use "Executive Privilege" as a ruse to hide corrupt practices?

Juan said...

Inq7:
"CHIEF Justice Artemio Panganiban has urged the public not to put political color in the

Supreme Court decision partly voiding Executive Order 464.

He said the justices exerted all efforts not only in deliberations but in studying all

petitions to come up with the best ruling. "It's not fair to put a bad light on this

decision," Panganiban told reporters Friday. At the same time, Panganiban clarified that

their decision did not declare all of EO 464 as unconstitutional."

Sir DJB,etal,

Why can't the SC just rule EO464 as unconstitutional? What's an EO or AO? Sen Miriam disputed this EO as out of order, saying that EO's are issued to 'execute' a law passed by legislature. Invalidating a portion should be enough to scrap the EO. GMA can easily make EO's. In fact the SC decision says an EO is unnecessary.

A modus vivendi between the executive and legislative branches should not be cloaked with 'ukay-ukay' cheap jurispudence. Do we have a decision or don't we?

Karl M. Garcia said...

these EOS are delaying tactics indeed.....

then it will be exacerbated by the numerous motions for reconsiderations after each and every decision against the eos and the pps.

I am sure that the solgen is just waiting for the right time, if you will ...to file the motion for reconsideration.

Then their is the point raised by BFR ;that there are more EOs to come and no one will stop her for about six months.

Karl M. Garcia said...

Arbet ....regarding the military situation.
I hope with general gudani's case;he would ask his lawyers to dismiss the insubordination cases filed against him.

The military does have dilemmas if they would do a gudani/balutan..an insubordiantion charge will be waiting for them .
You are correct, Arbet.

Lord Dracula said...

Karl, if the insubordination charge against Gudani was due to EO 464, then the case should be dismissed. But knowing how the Arroyo people think, fat chance the charge will be dismissed.

Karl M. Garcia said...

Ok Arbet,
Thanks.

Maiba tayo.

This decision does not prove anything after all..... but it I am still interested with the results and I am very interested to see if all of those summoned by the senate would do a repeat performance by Bert Gonzales...of refusing to answer even until almost turning blue.

pag nangyari ulit yan di para lang tayo nag merry go round.

HILLBLOGGER said...

Dean, Karl, Lord Dracula,

Military law carries distinct provisions pertaining to disobedience: an officer may disobey a superior order if the order is IMMORAL, ILLEGAL or UNLAWFUL.

The basis of their defence is the now invalidated EO464 itself or parts of it.

If you remember, poor Gudani and Balutan were told by fax by the CSAFP in the wee hours of the morning (on the same day as the scheduled hearing) NOT to attend the Senate hearing the by virtue of the EO 464, a copy of which was hastily faxed to them too. The superior order emanating from higher headquarters was based on the EO and not on any other military operation.

In sum, because the SC has now ruled that the EO464 or parts of it are unconstitutional, therefore unlawful, it is possible for the lawyers of Gudani and Balutn to challenge the disopbedience charges filed by the AFP against them.

Therefore, the issue of whether these officers disobeyed an order because they deemed it was UNLAWFUL at the time and confirmed thereafter to be such is not only a good defence tactic but a basis for exonerating them.

What's happening today is that court martial proceedings are being stalled to give Palace lackeys the time to turn around or dilly dally so that they can formulate some "lessons" and "teach" "disobedient" officers that they should obey orders blindly or rot till they retire if they choose not to obey blindly.

I have personally witnessed a few explicit, written commands by higher headquarters, important orders therefore by superior authority that were disobeyed by no less than a major service commander himself because he thought the commands were either immoral and illegal and he got away with them. There was an instance when an officer also willfully ignored and therefore disobeyed the order of no less than his commander in chief because he thought if carried out, it would result in illegality.

No less than Mayuga's predecessor willfully disobeyed, completely ignored a higher command's explicit orders in two instances while he was NTF commander in Minadano at the height of the military campaign against Abu Sayaff. Had he obeyed one of those supreme command orders, Commander Robot would still be alive today.

Gudani and Balutan could use this example!

Lord Dracula said...

What happened to Norbert is actually problematic, because Joker Arroyo decided not to do anything after seeing Norbert working again. A man working is not a sick man.

The reason the Senate was given contempt powers is to compel witnesses to answer questions. Remember, Norbert was released reportedly due to health. Yet when the man reported to work, the Senate did nothing. It was a merry go round because Norbert made the senators fools in the eyes of the people. Take note, Norbert did not claim executive privilege then; he claimed it was a matter of national security. He then became sick. That's what you get when you are caught lying.

At the very least, the decision allows the Senate to invite, and people invited will no longer have any reason to refuse except on matters of executive privilege. And the decision is even explicit - claiming that what a person knows is exclusive privilege is not enough reason for that person not to heed a hearing invitation. It must thoroughly explain why is it a matter of privilege.

Atty. Aceron said it best: Gloria Arroyo will hide behind executive privilege, even if its not covered by the executive privilege. That's why by not invalidating Section 2a, the Court has given Arroyo a nice excuse not to allow dept. heads to attend hearings.

HILLBLOGGER said...

Dean,

Re: "It is not clear now whether indeed all those military officers, like the Garci Generals can now be called by the Senate, since it is already being asserted (I think by Mike Defensor) that their non-appearance in the Senate was not under EO464, but in obedience to orders from the Commander in chief."

Defensor is DEAD wrong. A specific order by a commander in chief to the military must be confirmed by a written, explicit order by the Chief of Staff. Without such explicit, written order invoking a part of the military law, the disobedience charge can be challenged or if I am to believe what we've read, Senga merely faxed a copy of the EO464 in the wee hours of the morning on the day of the hearing without an explicit, written order to OBEY and follow.

A military officer is bound by military law to obey a direct order by his direct superior. However, if the order is not explicit or is vague, an officer could very well commit an error in his interpretation of the order in which case, the breach of obedience by a military officer may fall could directly on the shoulders of his direct superior. Senga may be called upon to in a court martial to give his own version of why and how an order, if an order was indeed given, was breached.

Defensor is playing Houdini with the military code of ethics and conduct. He has much to learn - he has very little clue on what the military organization is all about.

HILLBLOGGER said...

Addendum on Defensor HAVING VERY LITTLE CLUE on what the military organization is all about or how it operates:

Gloria herself has a completely distorted view of how the military operates. One rather peculiar although minute example is her systematic salute when passing a military review.

A commander in chief of the armed forces who exerts her authority as such from a civilian level has NO BUSINESS performing a military salute when passing a military review. Her practice of military saluting is a serious flaw in her knowledge of military conduct.

When passing a review, she need not salute all the way. As a civilian, she may give a final salute when the review is over but that salute is a normal response to the commander of the troops to acknowledge that she's satisfied or whatever but she need not salute all the way for the entire line of troops.

Complete, absolute nonsense. She is terribly ignorant and has become the laughingstock of other more civilized militaries internationally. (I also saw a picture of Lulli saluting all the way a PSG troop review and my friends and I were gobsmacked. In the first place, what gives her the right to even review the troops?)

Gosh, not even Her Majesty Elizabeth II, who under the British law is a military person and as such is the First Lord of the British Armed Forces would do that.

Gloria is re-inventing a military tradition intended for a mickey mouse, disneyland type of armed forces rats.

HILLBLOGGER said...

Dean,

I’ve just read that Gloria Macapagal-Arroyo’s speech before the graduating class of Cavite State University was marred when one of the graduating students, Maria Theresa Pangilinan, a mass communications graduate, unfurled a banner calling for Gloria’s ouster.

Atta girl! Maria Theresa Pangilinan has got guts, gall and raw courage…

How I wish there are more young Filipinos with similar courage to defy armed Gloria goons and speak up for what they believe. If there are more young people like Pangilinan, the Philippines can look to a bright future in spite of or despite Gloria’s bogus presidency.

Rizalist said...

Good evening everyone...Just got back from a long day based around the Southeast Asian Press Alliance. Read all the conference materials at the instawebsite put up by PCIJ
****
JUAN MAKABAYANA warm welcome to Philippine Commentary. Yes of course we do have a decision and it is more than welcome. In fact it is about time. The unanimous 14-0 vote on the decision, by itself was an important message sent by the Court, which I read as follows: "We cannot afford to rule otherwise in such an obvious case. A unanimous decision is like a slam dunk. So we must give the Court this: it ruled in a way that the overwhelming majority of those who've dared expressed an opinion say they should, and even those, like Dean Amado Valdez who was to me quite equivocal before, has suddenly turned rather militant, at least when talking on AM Radio to Eli Saludar in the Morning. I'm with you in welcoming the decision, but I agree with CJ Panganiban, I won't put any POLITICAL COLOR into this, so I refuse to give them anything but the benefit of the certainty that they could not have ruled any better in this case. This was not a new nadir for a Court with several localized minima in their respectability over the last say 33 years (since Javellana).

But I'm with you in the following sentiment: I WANT to be proud of my Supreme Court, I want to be able to look up some grand Decision it renders that I would be willing to point to as a model and high point of the Court. It's just that the Philippine Supreme Court has not yet met its ABRAHAM LINCOLN moment.

Rizalist said...

MARVIN--
I thought exactly the same thing on first pass. It's an instruction sheet for what the President should have done, and still CAN do now that they did not somehow disembowel Sections (1) and (2a) as well. In other words, they have used the rule on construction to construe orders as being constitutional to "confiscate the bullets but let the President keep the shotgun". Since there is this Decision and it merely strikes down a power of executive privilege that she has not yet even exercised under EO 464 -- there is really not much harm done to the potential to do so in the future.
She just has to use the Carpio Morales Decision as the "implementing rule and regulation" the next time it needs to be invoked. Am gonna try and read it again...unless I fall asleep...

Rizalist said...

Baycas,
Alan Paguia contribute to Philippine Commentary? Okay, I'll ask him. I didn't realize he was interviewed about it already on radio but was in the SEAPA conference all day.

Rizalist said...

Hillblogger--You didn't quite finish the story of that brave young graduating senior at Cavite. After she unfurled her banner calling for the President to resign, when her turn came, she proudly marched up to the stage, accepted her diploma from GMA, shook her hand, and without a second glance walked off the stage. The TV camera -- the unblinking eye -- caught the most indescribable look on Gloria's face as she looked on the retreating back of the girl while the audience could see her proud face. Durn! I didn't have my DVD recorder on! Hope they rerun it!

HILLBLOGGER said...

Dean,

I can tell you that I will be so proud if I could shake the hands of that galant, brave YOUNG woman - Maria Theresa Pangilinan!

Ahhh... the Philippines has hope after all and I'm sure BFR will be happy that there are young Pinoy citizens to take over the Republic once the old guard's gone!

Yeeeeeehaaaaaaaw!

Bernardo F. Ronquillo said...

Yahooo!Yes, Hillblogger, Maria Theresa Pangilinan truly warms my heart? DJB, the brave youth has not all gone to America. But I am concerned for her, please tell us if anything was done to her or did Gloria just let it pass or did not notice?

DJB, you told me to be consoled because their day is coming. But the majority sentiment around is: "Ang tagal-tagal naman!" I use to hate it when those who conspired to put Erap down shouted with together with the Daily Inquirer: "Anybody but Erap!" But now in my heart I wish, "Anybody but Gloria." And I dedicate that to those asking who is the alternative to GMA.

Bernardo F. Ronquillo said...

I am sorry, my opener should have been,"Yes Hillblogger,Maria Theresa Pangilinan truly warms may heart!!

Juan said...

Rizalist said,
"This was not a new nadir for a Court with several localized minima in their respectability over the last say 33 years (since Javellana).

But I'm with you in the following sentiment: I WANT to be proud of my Supreme Court, I want to be able to look up some grand Decision it renders that I would be willing to point to as a model and high point of the Court. It's just that the Philippine Supreme Court has not yet met its ABRAHAM LINCOLN moment."

SALAMAT for the welcome and the reply and most of all for HOPE!!!

Rizalist said...

BAYCAS Voila, Atty. Alan Paguia sends Philippine Commentary readers this SMS text (also posted as an update to this article):"Don't be fooled by the 64 page Supreme Court Ruling on EO 464. It is actually favorable to GMA. The only change is those subpoenaed must appear but they can refuse to answer by (1)claiming executive privilege; (2) stating the reason therefore; and (3) stating why it must be respected. Sections 1 and 2a were declared valid. Only Sections 2b & 3, w/c are dispensable provisions anyway, were declared unconstitutional. In other words the Supreme Court simply taught GMA's legal advisers how to continue frustrating congressional investigations by technical knockout. Talo pa rin ang taong-bayan. Walang dapat ipagsaya."

Just got that from Alan Paguia about half an hour ago!

Rizalist said...

Folks,
I think that the term "with finality" can never validly be applied to any Supreme Court decision, because of the singular fact that any such decision can be affirmed, revised, or torn to pieces by any future Supreme Court, which is really like a segmented worm that propagates through the historical time of a nation. Each segment is each Decision the Supreme Court makes.

I suppose one could say, not every segment of a worm looks like a worm. One must apprehend the entirety of a given national Supreme Court in the entirety of its being.

Some courts are worms, some are Serpents of Justice. And each has the opportunity to be either at each segmentation.

HILLBLOGGER said...

Dean,

I wasn't actually jumping with joy over the SC ruling. I couldn't, for the life of me conclude that the current members of the SC who are virtualy Gloria's glorious lackeys would turn around all of a sudden and deal her a stinging blow - just didn't follow.

T'was, as you said a glimmer of hope but a hope wrapped in moribund legaleses to fool ordinary folks like me.

Great thing Alan Paguia came out to strike down Tony Carpio and company's "decision" down.

baycas said...

djb, if i may just reiterate here what i posted at pcij...

i shouted my barber’s predictions two days ago:

PP 1017 – moot and academic
CPR – unconstitutional; No permit-No rally – constitutional

Garci’s 2nd Petition – who knows?

SC rules:
1997 – fvr’s national ID system (A.O. 308) unconstitutional
2006 – gma’s “conditional” national ID system (E.O. 420) constitutional
1997 – PI lacks enabling law (note that it was not ruled as constitutional or not)
2006 – PI constitutional

no high hopes for me, though…just expecting what is expected…much like the unsurprising mayuga report.

this SC decision on eo464 doesn’t actually release the gridlock…for in the end the definable factor of executive privilege and the inquiry-in-aid-of-legislation determinant may eventually be elevated to the SC for another round of political deliberations and long-awaited decisions.

-----

djb, i believe you and alan are right…no celebration is in order…

maraming salamat, sir…it’s really great of you to grant my request!

-----

Some courts are worms, some are Serpents of Justice. And each has the opportunity to be either at each segmentation.

…i only hope they are resistant to the slimy yet mighty snakes who often slither their way on lower courts.

Rizalist said...

Today's PDI editorial does not like the "balancing act" evident in the Decision's rhetoric.

But Paguia once explained this very common tenor of lots of modern decisions. There is apparently a judicial principle or technique of analysis in which there is a "weighing of interests" among the parties in conflict, as well as a consideration of past cases and precedent, in order to come to a just and equitable decision.

I suppose that when a decision has properly weighed the interests, it will feel "balanced" after it is written.