Thursday, March 6, 2008

Executive Order 464 Scrapped but not 'Executive Privilege'

Today the talk will be about the controversial Executive Order 464 being revoked and the real truth regarding 'Executive Privelege'. From what I gather, EO 464 is nothing but a reminder that Executive Privilege still exists. And certain sections were struck down by The Supreme Court because it was against The Constitution.

ELECTION lawyer Romulo Macalintal said scrapping Executive Order (EO) 464 would be futile as the executive privilege of a president is embedded in the 1987 Constitution.

EO 464 was issued by MalacaƱang on September 26, 2005 following the appearance of National Security Adviser Norberto Gonzales in a Senate inquiry that ended in his being detained and held in contempt after refusing to answer some of the queries of the senators.

PCIJ has a great blog post (and podcast) today regarding the scrapping of EO 464 which I found enlightening, they “asked three lawyers — Theodore Te of the Free Legal Assistance Group; former UP College of Law Dean Raul Pangalangan, and Marlon Manuel, spokesperson of the Alternative Law Groups — to weigh in on the CBCP call to scrap EO 464.”

In that podcast, I believe it is Marlon Manuel that expresses his dismay that although he finds it right that The CBCP wants the truth to come out, he says that EO 464 was already scrapped by The Supreme court. It’s a spin that I find compelling. Actually, it was sections in that EO that was scrapped, but in essence, as DJB has said, it further solidified Executive Privilege.

It’s a twist of words to the same outcome, and that is that EO 464 whether it exists or not, is still not a substitute to The Executive Privilege which is inherent in the Constitution of The Philippines. And if EO 464 is lifted, The President may look like a willing executive who also wants to know the truth, when in fact, Executive Privilege has always been intact.

In that same podcast of PCIJ, it is conveyed that The President may not use Executive Privilege as a blanket tool in order to deny testimony for any reason she deems fit. In a sense, the invoking of Executive Privilege must be decided by the courts on a case to case basis whether or not it falls within the right of The President to withhold any of her officials from testifying. Key phrase here is of course, case to case basis.

So what this all comes down to is that The Bishops got it wrong. They should have focused on telling Gloria, very bluntly, to have all officials testify. And to mark one person in particular as being an important key to that truth, and that is Romulo Neri. And as I have said, they neither made it specific in their demands, and they never precisely or even remotely conveyed a what if clause. The accountability clause that we were all waiting for.

If you have to read more regarding EO 464, then I suggest reading Fr. Joaquin G. Bernas’ column in the Inquirer, titled An EO 464 Catechism. In that column we get a glimpse that indeed EO 464 was just a validated reminder of Executive Privilege, and that the sections that were scrapped were scrapped because it was against the constitution. Two key sections in the article is important for us to realize,

Q. Must every claim of executive privilege based on the above enumeration be honored?

A. No. The Court in Senate v. Ermita said that in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. Thus it is not for one claiming executive privilege “to unilaterally determine that a duly-issued Subpoena should be totally disregarded.”

Q. Who then determines whether the claimed privilege should be honored?

A. The Court. Thus, for instance, when the Nixon administration claimed privilege for certain tapes about the Watergate break-in, the Court, after looking at the claimed privilege behind closed doors, held that the tapes were not covered by privilege and should be released.

But as the podcast in the PCIJ blog informed us, Gloria has succeeded in derailing the Neri testimony, this gave them enough time to regroup, reorganize, straighten out the paperwork, and if Neri ever does testify it definitely will not be against President Arroyo. And that case, perjury charges could be leveled against Mr. Neri, but without the paperwork to prove it, and with probable forged papers, who then holds all the cards, but still Gloria Arroyo.

(by: blogger aka 'Nick')