Q and A on EXECUTIVE ORDER 464

1.  What is the scope of the power of Congress to conduct inquiries in aid of legislation? 

The pertinent provision is found in Article 6, Section 21 of the 1987 Constitution:

SECTION 21.  The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.  The rights of persons appearing in or affected by such inquiries shall be respected. 

In the case of Arnault vs. Nazareno (87 Phil. 29, 45), the Supreme Court had occasion to state that the power of inquiry is an essential component to the legislative function because Congress may not be able to legislate effectively if it is not armed with the necessary information “respecting the conditions which the legislation is intended to affect or change”.  However, the Court in that same case also said that “it would be difficult to define any limits by which the subject matter of its inquiry can be bounded.  Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation.  In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation.” 

Going by the the above ruling, it would seem that the Senate is well-within its powers to make inquiries on the aborted/cancelled/suspended ZTE-NBN broadband deal, not so much for partisan political purposes (as what Malacañang spin doctors are harping about) but more so on the issue of whether or not the deal has complied with the government’s procurement laws that Congress itself has enacted.

2.  What is Executive Order No. 464 in relation to Article 6, Section 22 of the 1987 Constitution?  How did the Supreme Court interpret the controversial executive order? 

The salient features of Executive Order No. 464 are reproduced hereunder, viz: 

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SEC. 2. Nature, Scope and Coverage of Executive Privilege. - 

(a) Nature and Scope. – The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution.  Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that public officials and employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

1.  Conversations and correspondence between the President and the public official covered by this executive order; 

2.  Military, diplomatic and other national security matters which in the interest of national security should not be divulged; 

3.  Information between inter-government agencies prior to the conclusion of treaties and executive agreements; 

4.  Discussion in close-door Cabinet meetings; 

5.  Matters affecting national security and public order. 

(b) Who are covered. – The following are covered by this executive order:

1.  Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; 

2.  Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; 

3.  Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; 

4.  Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and 

5.  Such other officers as may be determined by the President. 

SECTION 3. Appearance of Other Public Officials Before Congress. – All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation.

On the other hand, Article 6, Section 22 of the 1987 Constitution states: 

SECTION 22.  The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. 

The Supreme Court in the relatively recent case of Senate of the Philippines vs. Executive Secretary Eduardo Ermita (G.R. No. 169777) held that Sections 1 and 2(a) of EO 464 are valid while Sections 2(b) and 3 are void. 

According to the Supreme Court, there is really no problem with Section 1 of the executive order as the same relates only to Article 6, Section 22, which refers to the so-called question hour, and not to Article 6, Section 21, which refers to the power of Congress to conduct inquiries in aid of legislation.  In the former, the appearance of department heads in the question hour is discretionary on their part considering that Congress can only request them to do so; or if the initiative to appear comes from the department heads themselves, then they can only appear with the prior consent of the President. 

However, if you examine the provision closely, this so-called question hour finds no application in a presidential system where there is separation of powers among the three branches of government.  It is more akin to a parliamentary system (where there is blending of powers) as this is usually “the 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, corresponding to what is known in Britain as the question period”. 

The Supreme Court has made it clear that “while attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation.  The High Court further explained: 

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.  x x x 

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. 

3.  What is executive privilege?  How does it affect the power of Congress to compel the attendance of executive officials under Section 21 (inquiries in aid of legislation)? 

In the case above-mentioned, the Court declared that the only way for department heads to exempt themselves from Congressional inquiries in aid of legislation is by a valid claim of executive privilege. 

Executive privilege is basically the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.  Specifically, there are three recognized kinds of executive privilege and they are: 

1.  the state secrets privilege — the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives; 

2.  the informer’s privilege — which refers to the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law; and 

3.  the generic privilege for internal deliberations — this has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.  

But how does one validly invoke a claim of executive privilege? 

The claim of executive privilege must be accompanied by a specific allegation as to the basis thereof, “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.  x x x Otherwise, Congress is left to speculate as to which among them is being referred to by the executive.  x x x Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. x x x Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.” 

Citing the case of U.S. vs. Reyolds, the High Tribunal said: 

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. 

4.  If the President’s formally revoked E.O. 464, what happens, does it mean what the S.C. allowed the President and her officials to invoke, can no longer be invoked? Or can you still invoke the provisions of an executive issuance that has been formally revoked? Specially since Memorandum Circular 108 is still in force? (adopted question from MLQ3) 

President Arroyo does not need EO 464 before she can invoke executive privilege.  Executive privilege, though not expressly mentioned in the Constitution, is nevertheless recognized by the fundamental law with or without said executive order.  The scrapping of EO 464 is practically useless as Romulo Neri can always invoke executive privilege when, in his judgment, or upon the advice of his lawyers, the information sought to be elicited is covered by the principle.  If the Senators disagree, then resort may be had to the Supreme Court to break the constitutional  impasse.  If that happens, then that would buy more time for the President to recover lost ground.  We all know how “long” it takes before the SC comes up with a decision or resolution.

5.  The main arguments in the provisions that were still valid, up to the time of revocation, having been ratified by the court, does a new executive issuance have to be signed, to continue invoking them?

In other words, does revoking E.O. 464 while asserting the right to invoke executive privilege, at this point, and with the particular issues at hand, actually mean anything? (also an adopted question from MLQ3) 

The revocation means nothing.  As far as the “valid” provisions of EO 464 are concerned (Sections 1 and 2a), they are still binding and effective.  Why?  This is so because Section 1 is merely a reiteration of the constitutional provision regarding the discretionary appearance of heads of departments in the question  hour (Article 6, Section 22).  It does not refer to inquiries in aid of legislation which is governed by Article 6, Section 21. 

Section 2a, on the other hand, is merely a discussion on the nature, scope and coverage of executive privilege which, as I said, is already jurisprudentially recognized with or without said EO. 

President Arroyo’s legal advisers were clever enough to scrap the executive order because they know that executive privilege springs not from some EO but from another source which is the Constitution. 

But I like this loaded question of Justice Carpio to Atty. Bautista:  Can executive privilege be invoked to hide a crime?