Monday, April 24, 2006

King Solomon Just Cut The Baby In Half

(PDF) SENATE versus ERMITA -- the unanimous Supreme Court decision penned by Justice Conchita Carpio Morales on Executive Order 464 -- is being hailed by some as a highly balanced decision in which, depending on one's particular sentiments, one can declare victory or defeat for Malacanang Palace. Here is the Solomonic heart of Senate v. Ermita --
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 only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege.
Red-bolding in above quotation is mine -- because it is precisely between Secions 2(a) and 2(b) that King Solomon has cut the Baby in half, in my reading of Senate versus Ermita. Although J. Carpio Morales spent the first 50 pages or so of the decision to motivate the invalidation of Sections 2(b) and (3) of EO 464, there was, in fine, a far greater concession granted to the Palace than the Senate. Since no infirmity, however, can be imputed to Section 2(a), the Supreme Court, by parity of reasoning has accepted, affirmed, upheld and perfected the President's "mere expression of opinion" regarding the nature and scope of executive privilege. The Supreme Court has made every single provision of Section 2(a) Subsections i, ii, iii, iv, and v, the Law of the Land (with a special ponencia by the President as an "Associate Justice") --
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:

i. 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);

ii. 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

iii. 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

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

v. Matters affecting national security and public order (Chavez v. Public
Estates Authority, G.R. No. 133250, 9 July 2002).
I find it ominous that by a unanimous decision the Supreme Court seems to give blanket affirmation to the above enumeration of classes of information. Though based on past cases and decisions, I hope any new assertions of executive privilege still has to be justified separately and on its own merit based on the true needs of public and private interests, which is the only true justification for the assertions of executive privilege in all the cases.

Perhaps to balance its own Sunday Editorial: They Lost It which gloated at Palace Cabinet officials engaged spin, PDI's Monday Editorial: Don't Lose It praises the Decision some more, then gives the Opposition some advice --

One distinctive feature of the Supreme Court ruling, written by Associate Justice Conchita Carpio Morales, is its persuasive approach to the legal issues at hand. It keeps an even keel all throughout, and deploys arguments in such a way that even Palace apologists can read the finding as favoring the administration. Of course, the fact that the court decided unanimously is the persuasive factor par excellence. But the decision's careful balancing act must have helped win support from other justices, and recommends it to almost everyone in the public square.

The opposition must therefore use the ruling as an opportunity to build public consensus about the way we proceed from now on. The political theater of senators browbeating witnesses must come to an end. The spectacle of senators coming in late to hearings and repeating questions already asked must no longer be inflicted on the public. Not least, the practice of senators using the coercive power of the contempt citation as a punitive measure, as in the case of the (admittedly frustrating) testimony of National Security Adviser Norberto Gonzales, must stop. The democratic project is first about process, before it is about power.

Uh...Huh. Hmmm...


I think it will depend on whether the Senate takes such advice, or decides to put the Decision itself, and the spin that has been given to it by both the Palace's conscious supporters and those who may have inadvertently given the Decision unwarranted early praise for being "balanced" and "well-reasoned." Just because it was a UNANIMOUS decision may also turn out to be either a good or a bad thing depending on what happens in the real world.

For example, an empirical test of what this Decision really stands for and means, is whether the Senate can in fact call back Secretary Norberto Gonzales to shed light on North Rail and Venable contracts. Or whether all those witnesses originally subpoenaed by the Senate Defense Committee to answer for alleged wiretapping operations of the ISAFP and the Garci Generals' involvement in the 2004 national election cheating in Mindanao.

As time passes and more people look at both the Decision and its consequences, it's true worth will be come evident. And what is the Baby that Solomon has cut in half, if that characterization of Senate v. Ermita is accurate?

I think that Baby is Congress' Power of Inquiry which some regard as the Constitutional embodiment of the Public's Right to Know.

The work I read over the weekend to try and make sense of all this from the perspective and experience of United States Jurisprudence is here in Investigative Oversight by Morton Rosenberg of the Congressional Research Service.

THE QUESTION HOUR DOCTRINE The "balancing of interests" technique that is redolent in the Decision, really centers around a distinction that the Court has seen fit to make between the Congress power of inquiry in aid of legislation which is locates in Article VI Section 21, and the power of inquiry in the discharge of its oversight duty, in Section 22.

Following the Decision's own avowed practice of construing government issuances in a manner that makes them Constitutional, I shall hope that the following quotation from Senate v. Ermita itself will apply in the coming controversies over it. Justice Carpio Morales says of the Arnault case --
The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate. The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.
By making the distinction that attendance at inquiries in aid of legislation is mandatory while that at inquiries of overshight are discretionary, and then accepting Section 2(a) in toto as having "no infirmity," has not the Supreme Court merely laid the basis for future exercises of gagging government officials, especially the highest level ones. For like the "chilling effect" of Proclamation 1017 on media, the pusillanimous in the government services, or those merely vulnerable to the pressures of higher authority, have already received the signal to observe omerta in all things. Mike Defensor was right, EO 464 has already "served its purpose."



I believe Nepal is a member-country of the British Commonwealth of Nations. The stable democracies of the British Commonwealth of Nations, particularly Britain and Israel, should call upon King Gyrendera of Nepal to give way to democracy. That means King Gyrendera should bring back democratic representation in Nepal. But it would be much, much better if King Gyrendera would be called upon by the stable democracies of the world to just simply abolish the monarchial system in Nepal, so that Nepal would become a stable republic. It would be better if the “neo-cons” in the U.S. can add their voices to the international call for King Gyrenera to give way to democracy in Nepal. Let Nepal become a democracy! Let there be a peaceful and lawful process of democratization in Nepal!

The Filipino progressives should call upon every Nepalese or Indian embassy throughout the world to inform the current king of Nepal that it’s time for him to give way to democracy in Nepal. The king of Nepal would become truly heroic if he will just abdicate from his throne and allow Nepal to become a real democratic republic. The wise citizens of this planet should give full support, whether financial or moral support, to the Nepalese people’s peaceful and legal struggle to democratize Nepal.

The liberals of the world must think now if monarchism, even the limited one, is still suitable to our current world. My stand on this issue is that all monarchies in the world should be peacefully and legally abolished. That’s political abrogationism. Political abrogationism is simply the advocacy of
peaceful and legal abolition of all dictatorships, monarchial reigns
and despotic regimes all over the world. Such advocacy also preaches
that every country, every social organization and every culture in
our world should embrace real and moral democracy through peaceful
and legal means. I have established a “study circle” for the purpose
of promoting this cause here in our country. The study circle is called
the League of Political Abrogationes. We have a web page wherein
you can study the basic ideals of political abrogationism. Just type the word “political abrogationism” inside any available internet search box that is in front of you. Or you can simply type this and click: .
I really hope that you can find time to read the basic ideals of
political abrogationism. I know that you are a nice intellectual
who can help us in how to gain adherents for our cause. The cause of
political abrogationism should become an international one. Please help
us in gaining international support for our cause. This
socio-political cause is open to both conservatives and liberals.
Namaste! I wish all of you here at this forum the real happiness in
this world.


Rummel Pinera

Rizalist said...

Thanks for your posting Rummel Pinera. And welcome to Philippine Commentary. I've also put a copy of this in our recent coverage of events in Nepal two posts down. Please keep us updated.

Lord Dracula said...

Stonewalling will be the next term in vogue in the coming months. Because that's what Arroyo will do. She'll just cry "Executive Privilege!", Bunye will make a convincing spin, and voila! (I'm half-jesting, but who knows?)py



Re: "Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:"

Executive privilege, I believe, is a given in matters related to national security or what we call "raison d'état". This privilege however must not be interpreted as a presidential shield in toto to thwart legitimate Congress inquiries over matters that concern government contracts and other various government activities which involve public funds.

What is happening is Gloria and Mike Defensor are using executive privilege as a blatant tactical political tool to put one over Congress.

In the case of the Mayuga report, I DO NOT BELIEVE that revealing the contents of the report poses a threat to national security - it is true that if the truth is revealed, it might pose a threat to GLORIA's political security. It is intellectual dishonest in the extreme of Mike Defensor, et al to say that the Mayuga report should be covered by executive privilege on account of raison d'état. Gloria IS NOT THE STATE. She is merely its public servant.

The Mayuga report is not an intel report concerning a potential war with a neighboring country or JI penetration of the Philippines.

Senator Biazon should press on. If Mayuga, who's been given the command responsibility of releasing it, refuses to abide by a Senate order, the Senate MUST cut down NAVY intel funding to ZERO.

Biazon, could perhaps take a different tack and examine the records of Naval expenses which include the upgrading of PN vessels, some of which, I believe were overpriced by at least 35% (contract was signed during the tenure of Angie Reyes as defence chief but which are currently ongoing...)

Biazon, of all people, having been a chief of staff AFP himself should know how the military organization functions. It was during his term when the AFP Code of Ethics was drafted and formally adopted. About time he showed his mettle!

manuelbuencamino said...

now I know why it took so long for the Supreme Court to rule on EO 464. They were not looking for a decision, they were looking for a way to operate on the constitution without killing it. But reading your post operation analysis, I think the baby died anyway.

Atty-at-Work said...


Who really won?

On one hand, Defensor said it best...E.O. 464 already served its purpose. Even if the Senate calls the same witnesses now, the impact will not be the same as before. The opposition already lost its momentum.

On the other hand, the decision explicitly states what everyone knows all along - that the government went beyond the powers granted to it by the Consititution. I'm interested in the SC's statement that E.O. 464 is also invalid for lack of publication - which is exactly the same thing as that of CPR (in fact, there is no official issuance supposedly providing for the CPR). So, the government is experimenting with its powers...trying to test the limits. If other decisions should be of the same tenor - that the executive department exceeded the scope of its powers under the Constitution - would this constitute a culpable violation of the Constitution?

Anyway, who won? Let's see in the days to come. If the Senate calls a witness and makes a finding that an invocation of executive privilege is wrong - like that of Gonzales - it should not hesitate to cite that witness in contempt, then let that witness assail the validity of that decision.

Rizalist said...

Fred, MB,

The proof of the pudding will be in the eating. The attack on the Legislature, in particular the Senate continues. It must test the efficacy of the Decision in actual process. And yes, the Legislature needs to wield the weapons at its disposal a lil more aggressively.

On the theoretical front, I am still mulling the effect of the Decision on WHISTLEBLOWERS.

As I read the decision, it almost seems like the SC has just outlawed that honorable practice by requiring all Cabinet officers to get presidential permission for any communication with the Senate or House.

Rizalist said...

what's your take on the claim of the AFP generals that they are covered by the Chain of Command and not executive privilege or eo 464. They courtmartialled Gudani. Also, it's gonna be quite a battle asserting that investigating the generals has nothing to do with national security. The decision doesn't seem to have settled very much so far!

Rizalist said...

LD--"Stonewalling" what a beautiful word that got going in my memory during the Watergate years. BTW, I think Nixon vs. United States 1974 should have been quoted a heck of a lot more by Carpio Moralies!

Lord Dracula said...

Dean, did you really say Carpio Moralies? As in Mora-lies? Was that deliberate? Kidding.

I tell you this: by the end of this year, all dictionaries and thesauri will be revised, since by then, the word stonewall will be synonymous with the term executive privilege.

Juan said...


"Bunyi's Almanac of Lies" is in the making. Target launch is anniversary of Bunyi's 'Tale of Two CD's'. Calling on all contributors to chip-in Bunyi-isms to Bunyi's Almanac of Lies website.

Example: What does "Fair and square" mean? as in GMA won 'fair and square'in the 2004 elections?

Bunyi's Almanac says:
GMA won as fairy and squarely as a pair of two round CD's, one is 'fake' and the other is 'original'.

Rizalist said...

No! that would be a cheap shot. It was just a TYPO. I don't know Justice Conchita Carpio Morales and have no reason to disrespect her.

Rizalist said...

Juan Makabayan,

Haha, but Ignacio Bunye...I've very lil respect for him. He should have resigned right after that 2-cd fiasco. kapal talaga niya!

Regarding the CPR decision...hey, the Supreme Court has an opportunity to make believers of the people with EVERY single decision, which we must never forget, can reverse any past decision too!

Atty-at-Work said...


Offhand, I don't think it makes it much worse for whistleblowers. The decision merely spells out what is provided by the Constitution and existing jurisprudence. If a personnel gives out confidential information (ergo, covered by the executive privilege rule), his/her liability, if any, stays the same prior to or after the decision.

Rizalist said...

atty at work,

am fretting because Section 22 is actually ambiguous where it says "...upon their own initiative, with the consent of the President, OR upon the invitation of the House or Senate..."

The ligature OR seems to grammatically indicate that any of the three conditions are occasions when executive dept heads can transmit information to the Congress.

But with the decision that ambiguity goes away. Now, the dept heads MUST secure the presidents permission without question, for "question hour" appearances anyway.

Don't know if its a big deal, but am also uncomfortable with the "divided" power of inquiry that is now proclaimed, "in aid of legislation" and "in aid of oversight". I guess I don't see the difference.


Re: "what's your take on the claim of the AFP generals that they are covered by the Chain of Command and not executive privilege or eo 464. They courtmartialled Gudani. Also, it's gonna be quite a battle asserting that investigating the generals has nothing to do with national security. The decision doesn't seem to have settled very much so far!"


My thoughts right off the bat:

AFP generals are right that they are covered by the chain of command - don't have to be a general to know that the military must follow the chain of command down to the lowest of the lowest in the military totem pole.

With regards to the executive privilege or EO 464, I think we are now definite on that one - SC ruled that military officers can indeed be summoned by the Senate and be interrogated - about what is another matter.

However, AFP generals, all 97 or 98 of them (1 star to 4 star ranks) as well as senior officers (LtColonel and Colonels), all 2,950 of them or so are mandated by military law to appear and answer congressional inquiries pertaining to public order, military expenditures and a few others that specifically touch on areas, issues of public knowledge in spite of or despite a clear order emanating from higher authority covering such areas. (Have got to consult my military law books to ascertain these specific areas.) This military obligation is covered by the Constitution - anywhere in the democratic world - that the civilian authority and its representatives must rule supreme over the military particularly IN TIME OF PEACE.

Moreover, and this is where these generals can be put in a spot:

1) They must show that a presidential memo contains explicit orders forbidding them to appear before a congressional inquiry specifying THAT THEY ARE FORBIDDEN TO DO SO because inquiries may force them to reveal information that will ultimately lead to threats to national security. This specific memo must then be transmitted and affirmed by the Chief of Staff AFP down the line of the chain of command invoking the said provisions of military law to make it legal.

2) However, the chief of staff cannot blanketly issue or affirm such a memo without transgressing the public right to know so in order not to transgress this provision in the Constitution that the civilian authority is supreme, he must qualify in his CSAFP memo what potentially damning questions by Congress should not be answered (part and parcel of military rules): intel reports on subversion, military operations involving tactical deployment of troops related to counter-subversion, military espionage and others which may be deemed high risks to national security. If he does this, NO FORCE ON EARTH can coerce the military to answer questions by Congress related to those areas.

3) Furthermore, a presidential memo to the armed forces (coursed through the chief of staff) cannot be militarily enforced down the chain of command unless the said chief of staff does not affirm or confirm in writing the same presidential memo or we have a problem here: the Mayuga report is a fact finding report centering on what is predominantly public knowledge - the alleged involvement of generals in the rigging of elections in Mindanao and as such, the basis of the Congressional inquiry is a public domain and is beyond debate - the allegations involving these generals ARE NOT a threat to national security.

4) Unless the CSAFP does things the military way, e.g., issues specific military memo, detailing areas that officers must not tread on, etc., officers who are summoned by Congress can INTERPRET the order. Obviously, the whole thing will now boild down to MORAL COURAGE. It is really up to these military officers who, say, refuse TO INTERPRET or not a blanket or vague order, to summon their moral courage and appear before Congress. They will not be breaking the chain of command even if they do so. It is Senga who will be in a spot and not the chain of command.

In sum, because the SC ruling on EO 464 has " freed "our military officers from their legal obligation vis a vis the commander in chief, they are bound to follow the constitutional tenet of civilian supremacy over the military inasmuch as the MAYUGA fact finding body's report covers a domain which is not only NOT a threat to national security but also because to my knowledge, there is NO existing presidential memo issued to the CSAFP ordering him in the most explicit terms NOT TO ABIDE by Congress requirement for them to appear.

I am infinitely sure that Gloria cannot issue a military memo ordering the military NOT to appear before Congress on matters related to the Mayuga report without transgressing military rules. If she does this, she will be putting a noose around her neck (that is if our military adheres to their own military law) because it will tantamount to an admission that something was really afoot.

Dean, chain of command is a system, it's not a law unto itself. To break it is illegal but to show that it was illegally broken, the military chain of command must show that there had been a clear, established chain in the command.


In other words, Dean, let's see that MILITARY MEMO. We've got ex military top guns in the Senate - they can tear up a vague memo into pieces anytime!

Rizalist said...

hope your right! you've heard about the CPR decision I hope. Just gone done skimming through it. It's a lot less detailed and careful than the one on EO464 but it does look like another setback for the Palace, at least in part.
PS I think Moral Courage is a scarce quantity right now. But maybe the Supreme Court decisions will create a new mood...



Yeah, I heard that.

By the way, do you realize that a military officer's leadership tenet is based not only on physical courage which is a given but on the more encompssing military leadership tenet of MORAL COURAGE?

This is what is an officer's ledership training is all about! A military officer is trained to have courage in all aspects of military life but more distinctly a military officer can only be deemed an officer and worthy to lead when he can prove to his superiors that he has MORAL COURAGE!

Moral courage is what shapes great leaders trained at Sandhurst Royal Military Academy, Dartmouth Royal Naval College, West Point, Annapolis, Ecole de Saint Cyr, Ecole Navale Nationale, etc.

I have dealt with hundreds of physiclaly courageous men in the Philippine military top brass but sad to say, there were only a few who impressed me as possessing the brand of moral courage that shaped military leaders or their military counterpart from abroad.

Perhaps, because our military officers like to believe that they are trained to fight (in spite of their PMA code)... they are forgetting that an officer's officer training is all about how to be a leader of men.


By the way Dean, I am very heavy on MORAL courage because to me it dictates a person's entire behaviour.

It is the same at home - my son has opted for a military career and when he is 18 will join a military college. (I was against it, purely for motherly reasons but he couldn't be persuaded to do something else, so I've decided to support him.)

Eversince my "baby" boy decided it would be the military for him, we, his parents (Dad comes from a family with a long line of military tradition dating back to even before great, great, great, great grandfather was commanding general of the all British cavalry under General Wellington that defeated Napoleon's cavalry under Marshall Ney in Waterloo; my father in law was the last British military commandant in Malaysia; it was he who set up the Royal Malaysia Military Academy) have been inculcating in him that the military is not only about physical courage - moral courage is as important if not the most important core virtue of a military leader.



I've just read that DoJ chief wants student heckler probed (

The Inquirer reported that Maria Theresa Pangilian, the student who stood up and called for the ouster of President Gloria Macapagal-Arroyo during graduation rites at the Cavite State University will be investigated upon orders of Justice Secretary Raul Gonzalez.

The news report said that insane DOJ chief Gonzalez said a crime was committed Maria Theresa Pangilinan stood up and shouted “Oust Arroyo” and carried a banner to express her opposition to Charter change.

What the friggin inanity is DOJ Chief mouthing here? Has he really gone starking, barking mad? Or is he merely executing some spurious, illegal Gloria policy to stop freedom of expression and legitimate dissent? Is DOJ siRAULo Gonzales hellbent on intimidating future young dissenters?

I say, send this turd of a Gloria mouthpiece to the South and order him to hunt JI terrorists there and probe them instead of intimidating young, upright, courageous people! He's nothing but a useless piece of horse dung!

Rizalist said...

They're real meanies aren't they? But HB, I've a got a feeling this girl can give tit for tat and we need not worry too much about her. From the looks of it, they're just cruisin for a bruisin with that gal!



It's not only the girl I'm worried about (I hope her parents have got enough dough which she'll need to hire good lawyers) but I am furious that this siRaulo should even think of doing that as a tool against future young dissenters.

Not just a meany Dean, Gonzales is a hooligan in legal disuise.