Zeroing on GMA’s revocation of EO 464 with its attendant injunction, Atty. Pangalangan wrote:
Effective immediately, I am revoking EO 464. Executive officials may no longer invoke EO 464 to excuse non-attendance from legislative inquiries [but they must still] abide by the Constitution, existing laws, and jurisprudence when invited to legislative inquiries.
and he noted that GMA is on her DOUBLE-TALK MODE again because while EO 464 has been revoked, and while executive officials may not use any more EQ 464 as an excuse not to attend legislative inquiries, they may still claim Executive Privileges and stymie the search for truth!
This is truly UNBEDOLABLE! But how is it possible?
Atty. Raul Pangalangan answered that question positively and enumerated 5 reasons why it is so:
One, the “executive privilege” of the President exists independently of EO 464. The privilege is built into the architecture of the Constitution’s “separation of powers” and aims to insulate the Executive Branch from intrusion by other branches (the legislative and the judicial). Executive privilege wasn’t created by EO 464; it does not disappear with EO 464.
Two, EO 464 merely laid down the procedural framework by which the President may invoke the privilege for herself and for her subalterns. Junking EO 464 merely sets aside the procedure without in any way diminishing the substance, which to start with was never really codified but was always implied and entrenched in the very structure of the separation of powers.
Three, Ms Arroyo merely repealed what was left of EO 464 after it was watered down by the Supreme Court in Senate v. Executive Secretary Ermita. EO 464 was issued to insulate Norberto Gonzales from the Senate probe on the controversial Venable contract, the million-dollar lobbying firm hired to secure US congressional grants for Charter change, for the sum of P50 million for the first 12 months. Since then, the President has invoked EO 464 to shield her against the Senate’s hearings on the “Hello, Garci” scandal, the JocJoc Bolante fertilizer scam, and the NorthRail project with the Chinese (yes, the same Northrail that ZTE’s proponents insisted they wanted to copy).
In other words, the Court struck down the half of EO 464 which enabled just about any staff member of any department of government to invoke the President’s privilege, but preserved the other half, namely, that for the President herself and her Cabinet.
That is why when the Senate summoned both Romulo Neri (erstwhile Cabinet secretary) and Jun Lozada (then president of a government corporation), Neri showed up and invoked executive privilege, but Lozada’s handlers had to send him to London via Hong Kong because he couldn’t invoke the privilege. When Ms Arroyo lifted EO 464, it wasn’t the all-encompassing gag that she was setting aside, but a gag already cut in half by the Court.
Four, as if to demonstrate further mischief, soon after the Court rendered this decision, the Palace issued Memorandum Circular 108, which strangely enough still extended the privilege to non-Cabinet members. Even today, Sergio Apostol, the chief presidential legal counsel, doubts if Memorandum Circular 108 was revoked together with EO 464. “There was no clear-cut pronouncement that it [MC 108] was also abolished. The President only mentioned … EO 464.”
Finally, in addition to MC 108, Ms Arroyo can still draw on other powers to suppress the truth. She had earliermuzzled two military officers from testifying before the Senate during the “Hello, Garci” tapes hearings. In Gudani v. Senga, the Supreme Court held that the two officers may be stopped from testifying not on the basis of EO 464 but on the basis of the President’s power to command the obedience of the military in her capacity as commander in chief.
By way of a concluding observation, Atty. Pangalangan penned that:
Many Filipinos—not all, but significantly many and impassioned for good reason—have arrived at their own conclusions about what really happened in the ZTE-NBN scandal and, in their hearts, have concluded that the stink has risen to the highest levels of power.
When people insist on Neri’s Senate testimony or wait for a Supreme Court ruling, it is not that they are not convinced and still await more evidence. “It is merely that they still hope to make institutions work and let constitutional processes, long manipulated, fulfill their true purpose.
Atty. Pangalangan hits squarely the people’s sentiment behind their insistence on Neri’s testimony before the Senate or their willingness to wait for a Supreme Court ruling. Despite the repeated and inveterate use of executive influence and prerogatives to stymie, if not to smoother at all, public outcry and investigations for transparency in national governance, the people are still HOPING for the Senate and or the Supreme Court to genuinely work to serve the ends for which they have been established.
And never has the Filipino heart so fervently hoped, as deeply as it does today, in the face of unresolved scandal after scandal, involving public officers and the premier civilian office of the realm since 2004, that these two institutions, with the revocation of EO 464, could some how lift the veil of secrecy, on the issues at hand, in national governance.
After being abused, betrayed, cheated, lied upon and maligned by those it had chosen to protect and defend it, the FILIPINO HEART feels it could ONLY accept so much! The will to hope is still there but it would not lie. Not even at this moment.
The FILIPINO HEART knows that if fate would find that hope is unworthy of its blessings, the only option left, without having to abdicate anymore its right to a life of decency, peace and justice for all is, sanguinary.
It knows this option, despite all its uncertainties, is just a deeply-felt hope away. And the FILIPINO HEART does not lie.
Executive privilege is not written in the Philippine Constitution but is a recognized doctrine in US jurisprudence. It must be noted it is only used if the withholding of the information is necessary to the discharge of “highly important executive responsibilities” as defined by Black’s Legal Dictionary:
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations.
Withholding of information is without legal basis
Attempts by executive officials such as Sec. Romulo Neri to withhold information is without legal or constitutional basis under EO 464 or the doctrine of executive privilege.
The Unlawyer says EO 464 changes nothing and may act like a soldier prisoner of war:
It is entirely possible that a witness may take the stand and state his name, age, rank, serial number,, and personal circumstances - and nothing more.
Gloria and her highly paid and richly commissioned gang of a$$lickers can shove EO 464 up each other’s A$$ES and consider that their Executive Privilege.