How the Supreme Court Upheld the Half of EO 464 the Palace Really Needs

Reference: Republic Act 4200 The Antiwiretapping Law
Following is a verbatim reprint of a post at Philippine Commentary on April 24, 2006, enttitled King Solomon Just Cut the Baby In Half which was an analysis of the unanimous Supreme Court decision Senate Vs. Ermita on Executive Order 464. Although it was widely praised as a victory for the Senate by all my favorite somnambulists, the Supreme Court actually upheld the President completely on the matter of executive privilege whilst giving the Senate a hollow victory over a nonexistent feature of the almost-Parliament called the Question Hour! Ed Ermita's threat to use EO 464 in order to frustrate the Senate investigations into the 2007 Garci Recordings, indeed any Senate investigation, --- that threat is not a hollow one. The Supreme Court saw to that last year...But a potentially explosive new development in the saga of the Garci Recordings is the accusation that a MAJOR TELECOM firm was involved in the alleged illegal wiretapping operation of the Intelligence Services of the AFP. Now here the Senate has a chance, because even Chief Executives like Manny Pangilinan and Jaime Augusto Zobel de Ayala are NOT covered by EO 464. I think these telecoms could lose local and international licenses and franchises and become the subject of intense Congressional pressure if these accusations of participation in illegal wiretapping operations turn out to be true.

(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
1998).

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
1998);

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

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...

WHO REALLY WON?

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 oversight 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."

What will become crystal clear in the next few weeks, I think, is how big a victory for President Arroyo last year's unanimous Supreme Court Decision, Senate vs. Ermita actually was.

Which is why I don't understand the Palace's over-reaction to the sudden Senate re-opening of the investigation into the Garci Recordings.

The President was too quick, I think, to be playing the Terror Card, with "I have a country to run, I have terrorists to fight, I have progress to make..." calling the Senators "titans of hate."

Secretary Ermita's broadcast threat to invoke EO 464 indicates he understands the real meaning of Senate vs. Ermita, and how much power it actually gave the Executive to keep the Legislature's long nose out of their internal affairs. It is not a hollow threat.

TIT FOR TAT with the Senate is what Justice Sec. Raul Gonzalez threatened with seeming relish yesterday, as he announced the intention to "re-open" an investigation into the "unindicted co-conspirators" of convicted US spy, Leandro Aragoncillo. But I think, if I were him, I would indeed let sleeping dogs lay on THAT one. It could backfire and any earnest prosecution has already been poisoned and prejudiced by Gonzalez. There could be some things there that even Raul Gonzalez might not want to come to light, such as US sentiments and evaluations of President Arroyo that might be unpleasant to bring up just now. It might even requiring bring Leandro Aragoncillo to the Philippines which could open a real Pandora's Box.


CAVEAT: I believe that the Garci Recording represent prima facie physical evidence of a crime against NATIONAL SECURITY, involving the illegal interception and recording of conversations between the President of the Republic and other high government officials, as well as private persons. The nature and content of those recorded conversations are irrelevant to the existence of this crime, which can and should be prosecuted under Section 1 of Republic Act 4200 The Antiwiretapping Law:

REPUBLIC ACT NO. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES

SECTION (1A) It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described:

On ANC's noon time Hot Seat today, Rep. Teddy Boy Locsin said that the House Committee Report on the Garci Controversy concluded that "a rogue institution"-- the Isafp -- had wiretapped the Commander in Chief.

The simple fact is that the Garci Recordings and Vidal Doble's testimony are evidence of that crime against national security. It is not widely recognized that RA 4200 the Antiwiretapping Law is explicitly a National Security Statute. Read Section 3:

SECTION (3A) Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security. Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

This is the most satisfying answer to the "Poisoned Fruits Dilemma" that Sen. Dick Gordon tried to use in opposing the renewed Senate probe. He says that if they even touch the Garci recordings the whole Senate could go to jail. But not if you treat the Garci Recordings as evidence in an investigation into crimes against national security, such as bugging the Commander in Chief. This crime does not depend on the detailed nature of the conversations, but merely that they were made without the required Court Orders and oversight.