Executive Privilege, the Case of Romulo Neri and Gloria's Radio Admission

oth the Senate leadership and the Catholic Bishops have joined in the call for President Arroyo to lift Executive Order 464--the gag order on all executive dept officials first imposed in connection with a Senate investigation into the Venable Contract and to stop the testimony of the Garci General Francisco Gudani about election fraud in Mindanao. Today, everyone is waiting with bated breath on how the Supreme Court might rule in the case of Romulo Neri's petition for prohibition against the Senate's arrest warrant for contempt, based on his claim of executive privilege based on EO 464 during that ill-fated Executive Session last year. Unfortunately for Senators, Bishops, and citizens alike, EO464 was already the the subject of a unanimous Supreme Court Decision in 2006, Senate v. Ermita in which the pith of the matter is all in the last paragraph--

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.

The basic effect of this unanimous decision of the PANGANIBAN COURT can be seen in the following color coded text of EO 464 in which the blue provisions are UPHELD while the red provisions are NULLIFIED:

EXECUTIVE ORDER NO. 464

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:

1. 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);
2. 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).
3. 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);
4. Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
5. Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. – The following are covered by this executive order:

1. Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;
2. 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;
3. 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;
4. Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and
5. 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. (Emphasis and underscoring supplied)

Going by the headings of EO 464, the Supreme Court upheld the President's right to require permission of her department heads before attending Question Hour hearings in Congress. (Section 1). They also upheld her definition of the Nature and Scope of Executive Privilege (Section 2a) , but struck down her coverage of persons, as opposed to information (Section 2b and 3).

To me, Senate v. Ermita was a "mitigated win" for Ermita and the Palace, and a "mitigated loss" for the Senate and the People. Its unanimity gives it extra force, and the fact that it substantially upheld the most potent portions of EO 464, the difference between "win" and "loss" is unmitigated!

I don't see how the Court could allow the arrest of Romulo Neri when he has substantially complied with the High Court's own requirements on how Executive Privilege is asserted, even if he has not satisfied the Senate, or the Public's Right to Know. For the Court unequivocally declares in its Decision:

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of “executive privilege.”

They may ask him to return just to re-assert Executive Privilege with their Permanent Writ of Prohibition against a pusillanimous Senate...

One development that the Court may or may not take judicial notice of is the apparent admission by the President during a radio interview about corruption ("katiwalian") attendant upon the ZTE deal...

Transcript of Gloria Macapagal Arroyo's Radio Statement

PGMA: “Nasumbong sa akin the night before the signing of the supply contract, pero hindi pa naman kasi...oh that was only one of many signings..so...eh pa paano mo naman makakansel the night before mayroon pang ibang bansang kausap...tinuloy yung signing pero sa unang pagkakataaon kinausap ko na agad yung pangulo ng china para sabihin sa kanya na kailangang kanselahin ang proyekto.”

RADIO ANNOUNCER: Naunawaan naman nila?

PGMA: “Sa umpisa hindi masyado, nagulat pero sa pangalawang paguusap ko sinabi na naintindihan niya, at ah at ah kaibigang kaibigan pa rin tayo kahit na kakanselahin ang proyekto. Eh hindi ko gusto ang katiwalian, ang taong bayan galit sa katiwalian, galit din ako..galit din ako sa katiwalian.”

It must be borne in mind that her husband lay possibly dying from a dissecting aneurysm when the President went to Boao, China for the signing of the ZTE supply contract. She does not say exactly what was told to her the night before the signing, but it's pretty clear that the reason the project had to be cancelled was KATIWALIAN, meaning corruption. The unavoidable conclusion is that what was told to her was about irregularities tainting the contract. Yet she signed the contract.

This is ground, in my opinion for the Court to rule that executive privilege cannot be used to hide possible irregularities or illegal activities by the Executive.

Fr Joaquin Bernas has his own thoughts on The Limits of Executive Privilege.

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Ricky Carandang is reporting on a potentially explosive new flashpoint in the continuing saga of Gloria Macapagal Arroyo's slowly unreeling relationship with China. Did the President give away oil and gas exploration rights in the Spratley Islands in exchange for $2 billion a year in concessionary loans till 2010?

The latest Google Earth imagery of the Spratleys contain imagery of both permanent structures and what are tantalizingly labeled "Chinese warships?"

A previous Philippine Commentary on this topic was China's Greater East-Asia Co-Prosperity Sphere