THE Counsels for the Defense of Liberties (CODAL) has branded Executive Order 464, which prohibits senior executive and military officials from appearing before Congress without the president’s permission, as unconstitutional and illegal.
In a statement prepared by Atty. Neri Javier Colmenares, CODAL also said EO 464 and the Arroyo administration’s "calibrated preemptive response" on rallies constitute attacks against civil liberties and the Constitution.
The group said it will challenge the executive order before the Supreme Court.
CODAL’s statement in full:
EO 464 IS UNCONSTITUTIONAL and ILLEGAL:
ANOTHER ATTEMPT TO ESTABLISH AN AUTHORITARIAN REGIME
Pres. Gloria Arroyo committed another culpable violation of the Constitution when she issued Executive Order 464 prohibiting "senior officials of the executive department and high ranking officers of the AFP and PNP " including those which in the "judgment" of the AFP Chief of Staff, PNP Chief Department Head and NSA head, are "covered by the executive privilege" from appearing before Congress without the permission of the President.
CODAL is concerned by the series of orders from Pres. Arroyo that constitutes attacks against civil liberties and the Constitution. The ‘CPR’ policy previously issued by Malacanang is another attempt to suppress freedom of expression and assembly on the basis of an administrative requirement—the issuance of a permit. Taken together with its implementation of the national ID system and the push for anti-civil rights legislation in the guise of anti-terror bills, the Philippine political crisis has escalated to martial law proportions where the government is
completely isolated from the people. The state of ‘undeclared’ martial law is more deadly than the Marcos’ martial law because the constitutional mechanisms under Art. VII (Sec. 18) meant to protect the people from the President’s abuse of her martial law powers cannot be activated absent a formal declaration. The latest move of Pres. Arroyo through EO 464 to curtail another constitutional right of the people—the right to information—may be a preparatory move for the full implementation of an authoritarian regime.
CODAL and other concerned lawyers and peoples organizations will file a urgent petition for certiorari and prohibition before the Supreme Court to challenge this latest attack on civil rights.
EO 464 violates the following constitutional provisions:
Art. VI, Section 22—The heads of departments may, upon their initiative, with the consent of the President or upon the request of either House, x x x appear before and be heard by such House on any matter pertaining to their departments. x x x When the security of the State or public interest so requires and the President so states in writing, the appearance shall be
conducted in executive session. (i)
Art. III, Sec. 7—The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law."
Art. II, Sec. 28—Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
Firstly, the Constitution requires presidential permission only if the department heads want to appear before Congress ‘upon their initiative’. It does not require such permission when Congress so requires Department heads to appear. Pres. Arroyo’s order requiring presidential permission even if the official is summoned by Congress is a recipe for a constitutional crisis that has no basis under the Constitution and will only lead to an escalation of the crisis.
Secondly, the Constitution does not mention ‘generals’ and other ‘senior officials’ in Sec. 22 but only department heads. EO 464′s inclusion of lower officials, and worse, any official for that matter deemed by the executive as ‘covered’ by executive privilege, as among those who may be prohibited from appearing in Congress is clearly unconstitutional.
Thirdly, the rule under the constitutional provisions on legislative powers to conduct inquiry [Art. VI (21)] and the peoples right to information [Art. III (7) and Art. II (28)] is that all government officials (and any citizen for that matter) must appear before Congress when summoned. The exception is when ‘the security of the state’ or "public interest" so requires, in which case, the President may demand that the appearance be conducted in executive session—but not absolutely prohibit the appearance. Otherwise, Congress will be rendered inutile as the executive can always claim ‘public interest’ in all its undertakings and thwart the Constitutional role of Congress and the peoples and media’s right to information. The blanket
requirement of presidential permission under EO 464 therefore, rather than a case to case assessment of the security or public interest implications of the appearance of an executive official, is another blatant disregard of the Constitution.
The President must cite the constitutional basis—a specific constitutional provision to be exact—of its claim to ‘executive privileges’ in order to justify its violation of other constitutional provisions. It cannot use the amorphous US concept of ‘executive privilege’, which CODAL believes to be a constitutional myth, to violate the Bill of Rights and legislative powers under articles III and VI of the Constitution.
Furthermore, EO 464 is illegal as Chavez vs. PCGG [G.R. No. 130716. December 9, 1998] provides: " Under Republic Act No. 6713, public officials and employees are mandated to "provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearings whenever appropriate x x x," except when "otherwise provided by law or when required by the public interest." In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees.
In fact, the famous case of Arnault vs. Nazareno [G.R. No. L-3820 July 18, 1950] has already granted the legislature the power to subpoena witnesses, and even punish those who obstruct this legislative power:
"If the subject of investigation before the committee is within the range of legitimate legislative inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its process may be enforced by the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40 Ann. Cas. [1916 B.], 1115.)
"The Senate has empowered the committee to continue the investigation during the recess. By refusing to answer the questions, the witness has obstructed the performance by the Senate of its legislative function, and the Senate has the power to remove the obstruction by compelling the witness to answer the questions thru restraint of his liberty until he shall have answered them. That power subsists as long as the Senate, which is a continuing body, persists in performing the particular legislative function involved"
Lastly, the Presidents legal advisers misled her in citing in EO 464 the very cases which actually considers orders like EO 464 constitutionally invalid.
EO 464 cites Almonte vs. Vasquez [G.R. No. 95367 May 23, 1995 ]which actually declares that: "On the other hand, where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his
conversations, courts have declined to find in the Constitution an absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws."
EO 464 also cites the Chavez cases where the Supreme Court actually declared that: In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants. Undeniably, the essence of democracy lies in the free flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive.
President Arroyo’s issuance of EO 464 is not only an arrogant attempt to muddle the truth and repress civil rights. CODAL expresses its utmost concern with the continuing trend towards a more authoritarian regime under Pres. Gloria Arroyo.