Thursday, April 20, 2006

E.O. 464 (Partly) Illegal

I started this post when the's report on the Supreme Court decision on E.O. 464 was on its 2nd update. It's now on it's 6th update and substantially new information is presented that my previous posts are almost worthless. I will still leave them here so people can follow the development of this story.

So according to INQ7
"THE Supreme Court has upheld the right of Congress to compel executive officials to appear before inquiries “in aid of legislation” as it struck down portions of an executive order by President Gloria Macapagal-Arroyo."

"The Court also upheld the right of the president to ask for a closed-door session if the "security of the state or the public interest so requires."

"The court said it was "impermissible" for officials to hide behind the President's order to avoid appearing in congressional hearings and for the President to evade requests for information without explaining why to Congress."
I will crow about this however, if the INQ7's 6th update is final, the Supreme Court's decision mirrored my opinion on this matter, and I quote myself.
"This new EO by the President will test the limits of Presidential power. I can see the logic of the President reviewing with the summoned Cabinet members what he/she can discuss in Congressional hearings. I can see how members of the executive branch can be forbidden to testify on matters of national security unless the hearings are in closed session. I just cannot see how the President can forbid Cabinet members from appearing in congressional hearings without just cause."
Yes, I know that next time, I will probably be wrong, but let me be wallow in my smugness at this time. :)

(First post - after INQ7's 2nd update on this story) reports that the Supreme Court declared EO 464 illegal.

The executive branch or government tried to exercise powers beyond its authority and was smacked down by the Supreme Court.

Checks and balance at work.

Additional comments:

I think this is the place to point out Domingo's proposal that the Philippine Congress should adopt the US practice where their
"Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House"
"The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law."
Because they are prosecuted under criminal law, they are accorded "every right which is guaranteed to defendants in all other criminal cases.".

This rule should limit our Congress' boorishness towards witnesses they deem uncooperative.

Update (this is after INQ7's 4th of 5th update on this story) has updated their story and it seems that the Supreme Court has only deemed some of EO 464's provisions as illegal
"Voting 14-0, the high court declared as valid Sections 1 and 2 of EO 464 but nullified Section 2(b) and Section 3."


domingo said...

What of the Executive Power "of Control" over executive officers (Sec. 17, Art. VII) and "of Command" over military officers (Sec. 18, Art. VII)?

These are awesome Executive Powers, don't they have any weight at all?

Can these powers of a co-equal be just as easily superseded by the authority to inquire "in aid" of the Power to Make Law?

Regarding the Supreme Court's decision on EO464, note it well that the term "interpellation," oddly enough, still appears in the 1987 Constitution (undeniably a "presidential" form of government), while the term "interpellation" is defined in Wikipedia as "a Right of Parliament," and to quote:

"The word Interpellation is also used to refer to the formal right of a parliament to submit formal questions to the government. In many parliaments, each individual member of parliament has the right to formally submit questions (possibly a limited amount during a certain period of time) to a member of government. The respective minister or secretary is then required to respond and to justify government policy. Interpellation thus allows the parliament to supervise the government's activity."

Owing to this contradiction (Executive Power of Control, of Command against a "Right of Parliament"--now of Congress--to "require" Cabinet members of the Executive "to respond and to justify government policy"), the Congress wielding the Legislative Power in the 1987 Constitution may be regarded as "semi-parlimentary" in function.

Incidentally, the U.S. President does not possess the "Power of Control," claiming the exercise of "control" over executive officers to be merely part of a nebulous (and often controversial) "Executive Privilege."

This is a "privilege" claimed to be incident to the "separation of powers" the Sovereign dispersed among the three co-ordinate co-equals, the Legislative, the Executive, the Judiciary, wary always of "concentrated power," distrustful even of power itself (as in "lust for") delegated at any level.

So, why did the Court rely on the concept of "Executive Privilege" as defined by U.S. precedents and law books on the U.S. Constitution?

I think these citations in the decision are irrelevant, inapplicable to a Presidential system (which is unlike the U.S. presidential system) where the Executive wields the "Power of Control, of Command."

Happily, the Court warns Congress:

"As evidenced by the American experience during the so-called "McCarthy Era," however, the right of Congress to conduct to inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subject to judicial review pursuant to the court's certiorari powers under Section 1, Article VIII of the Constitution."

It was U.S. Senator Joseph "Joe" McCarthy (together with Rep. Martin Dies) in the 1950's that indulged in what is now called "CONGRESSIONAL ATTAINDER." (See my blog "Not In My Name" at under Territorial Filipinos.)

roy choco said...

Hi domingo,

Sorry for the late reply.

1. I think (IANAL) the Court's decision makes it clear that Congress' power to supersede the Executive's power of control over executive officers excepts in cases of executive privilege. This is because "the power of inquiry is inherent in the power to legislate". To create good laws, Congress needs as much information as they can, and many of this information can only be provided by the executive department.

2. The SC's decision does not require Cabinet members to respond and justify government policy. This is the precisely the part of EO 464 that the Supreme Court upheld. Cabinet members are not required to attend the "question hour" sessions in Congress. Only in sessions in aid of legislation can they be compelled to attend.

3. The fact that the word interpellation appears in the Constitution does not make our system semi-parliamentary. The reason the SC ruled that Cabinet members are not required to attend the Question Hour is because we are in a presidential form of government. I quote

"In the context of a parliamentary system of government, the “question hour” has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government... The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers"

I think Fr. Bernas, SJ in his column explained the SC's decision best.

"The decision of the Supreme Court did not plant new fences. The fences dividing the executive and legislative branches had been there all along. But one of the two either could not see the fence or refused to honor it.

What the Court has done is tell the two that the fence has been laid out in the Constitution and to force them to see where the fence lies. In the process, while no new doctrine was laid down, greater clarity has been achieved. What remains is for the two branches to honor the division."

As as recent events have proved, the Arroyo administration is not yet ready to honor the divisions of power prescribed by the Constitution and demarcated by the Supreme Court.