The SC rules

The Supreme Court (SC), headed by chief justice Artemio Panganiban handed down last week, one after the other, major decisions on two different but equally controversial Executive Orders (EOs) issued by President Arroyo last year. The SC justices reviewed and debated the constitutionality and legality of each presidential EO while having their annual summer sessions in Baguio City. The SC deliberated upon the two EOs that were challenged before the High Tribunal in petitions filed last year by its respective opponents.

Voting 12-2, the SC first upheld the validity of EO 420 on the issuance of one national identification card to all state employees, including workers in all government-owned and controlled corporations. In a subsequent 14-0 decision, the High Tribunal struck down as constitutionally infirm Section 2 (b) and Section 3 of EO 464 but upheld the validity of the rest of the presidential fiat. This directive of Mrs.Arroyo was elevated to the SC by senators and opposition congressmen who complained about the alleged abuse of executive powers that infringed upon the authority of Congress, as a co-equal branch of government, to summon Cabinet and other Executive Department officials, including the police and military to attend congressional hearings.

As expected, as soon as the SC handed down their ruling on EO 464, opposition solons rejoiced, claiming this as a victory for their own cause. Official apologists of Malacanang Palace, however, gave a less exuberant reaction and kept to their traditional comment "we will abide" (and comply with the high court ruling). But as aptly put by Panganiban, this was a victory for justice and not for anyone else.

The unanimous decision of the SC on EO 464 should be seen as a wake-up call for both the Executive Department and the two chambers of Congress as well. As the third co-equal branch of government, the SC sternly reminded the Executive Department and Congress of the rules of engagement that each of them must observe and comply with.

The High Tribunal acted with judicial statesmanship as the final arbiter of constitutional and legal disputes between the two warring branches of government. In their decision, SC justices merely reiterated the provisions of Sections 21 and 22, Article VI of the country’s 1987 Constitution on congressional investigations "in aid of legislation" and on Cabinet officials summoned to the "Question Hour," respectively.

The SC ruling re-stated that it is "mandatory" for Cabinet and other Executive officials to go to congressional hearings "in aid of legislation" if invited or summoned, with or without the consent of the President. This is unless otherwise the President invokes her "executive privilege" which covers all confidential or classified information concerning the President and the public officers covered by EO 464, namely, the senior officials of executive departments who in the judgment of the department heads are covered by executive privilege; Generals and flag officers of the Armed Forces and such other officers who in the judgment of the Chief of Staff are covered by executive privilege; police officers with the rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by executive privilege; senior national security officials who in the judgment of the National Security Adviser are covered by executive privilege; and, such other officers as may be determined by the President.

But the SC ruled invalid Section 2 (b) of EO 464 which enumerated these Executive officers covered by EO 464 who cannot invoke "executive privilege" on their own mere say so. Since its issuance in September last year, EO 464 had been wantonly invoked by all these Executive officials to skirt congressional summons.

The "consent factor" of the President, the SC cited anew, is needed if any Cabinet or Executive official is summoned in the "Question Hour" of Congress where any thing under the sun can be raised, and thrown, (other than matters pertaining to oversight functions of Congress on particular Department mandated to implement the laws they passed), asked and thrown at the official being grilled. But in fairness to the lawmakers, the "Question Hour" used in parliamentary systems, has been sparingly invoked in Congress.

At the outset, Solicitor General Eduardo Antonio Nachura admits he was not saddened at all by the unanimous decision of the High Tribunal on EO 464. As a former Congressman himself, Nachura feels that the SC ruling restored the balance and order of things in this universe called the administration and Congress. Nachura has the benefit of looking at EO 464 with kinder views, he, being a former lawmaker himself when he served two consecutive terms, or six years, in his congressional district in Western Samar.

The government has 15 days to file their MR starting from its receipt of the copy of the SC decision which Nachura expects to get today in his office.

He is meeting with government lawyers at the Office of the Solicitor General to decide whether or not to file a motion for reconsideration (MR) given the fact it was a unanimous decision and its chances of being reversed are almost nil. Offhand though, Nachura is more inclined to just seek a clarification, not reconsideration, from the SC on the legal and constitutional remedies that Cabinet and other executive officials, can use to protect their rights as witnesses being grilled in congressional inquiries "in aid of legislation."

Actually, they can ask for "executive sessions" or (closed-door), without media presence, if the information squeezed out of them by lawmakers during a public hearing is confidential or involves state secrets or matters of national security. Or, they can invoke their rights against self-incrimination as in other precedent cases in the past. Or they can risk being cited for contempt as what happened in the most recent case of National Security Adviser Norberto Gonzales when he refused to further testify last year on the controversial Venable contract.

The SC ruling on EO 464 should therefore be enforced in its spirit and letter when sessions of the 13th Congress resume this May 15. The Palace and the Congress ought to be guided by these standard norms of conduct with the several vital bills still not yet approved into law like the long-delayed 2006 budget bill and the proposed Anti-Terror Law. The lawmakers still have the opportunity to do so even if they have only a month left to wind down the second regular sessions when the Senate and the House of Representatives adjourn sine die this June 9.

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