Thursday, April 20, 2006

Appreciating a story

There are many ways to look at a story. The release on Thursday of the Supreme Court decision on Executive Order 464 shows how Filipino journalists differ in appreciating a simple story.

Some reports, especially those released earlier than the others, say the Court declared "EO 464 unconstitutional," others say the Court "partly voids" the executive order, while a Supreme Court media release says the Court "declared constitutional EO 464 insofar as it bans executive officials from appearing during the question hour."

Below is the official media release of the Supreme Court.

SC: Congress Can Compel Appearance of Public Officials in Inquiries ‘In Aid of Legislation’

In a unanimous (14-0, with one Justice on leave) decision promulgated today, the Supreme Court upheld the right of Congress to compel the appearance of executive officials in congressional inquiries in aid of legislation by partially voiding Executive Order No. 464.

However, the Court, speaking through Justice Conchita Carpio Morales, declared constitutional EO 464 insofar as it bans executive officials from appearing during the question hour.

In making a distinction between congressional investigations in aid of legislation and investigation during the “question hour,” the Court said that the former should be untrammeled because it is co-extensive with the power to legislate of Congress. On the other hand, investigations relating to the question hour do not relate to specific legislations but are directed merely to congressional oversight over the implementation of laws. Section 1 of EO 464 required all heads of departments in the Executive branch to secure the consent of the President before appearing in an inquiry conducted by either House of Congress, pursuant to Art. VI, sec. 22 of the Constitution. On the other hand, sec. 2(a) enumerates the types of information covered by the order.

The Court invalidated Sections 2(b) and 3 of EO 464, thus resolving the major issues raised in six petitions filed against the order. It can be recalled that on September 28 last year, the President issued the questioned executive order banning the appearance of heads of departments and other officers of the executive branch in congressional inquiries without the prior consent of the President.

Under sec. 2(b), officials within the coverage of EO 464 are: senior officials of executive departments; generals, flag officers, and other officers of the Armed Forces; Philippine National Police officials with the rank of chief superintendent or higher and other PNP officials; senior national security officials who in the judgment of the department head, Chief of Staff, PNP Chief, and National Security Adviser, respectively, are covered by executive privilege, as well as such other officers as may be determined by the President to be likewise covered. Sec. 3 states that all such officials should first secure the “prior consent” of the President before appearing in a congressional inquiry.

“The infirm provisions of EO 464…allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated,” the Court said.

The Court held that only the President can invoke executive privilege. She may also authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the act is “By order of the President,” which means that he personally consulted with the President, it added.

The Court also held that the claim of privilege under sec. 3 of EO 464 in relation to sec. 2(b) is invalid per se for being so broad as to allow even “implied claims” of privilege by lesser officials. The proviso requiring the President to give her prior consent, the Court explained, means only that the she may reverse the prohibition which already exists by virtue of EO 464. This may allow the President to authorize claims of executive privilege by mere silence, the Court said.

“It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes EO 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case,” the Court said.

It emphasized that a claim of privilege, being a claim of exemption from an obligation to disclose information, must therefore be clearly asserted.

“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,” the Court stressed.

The High Court also reminded Congress that although the power of legislative inquiry may be broad, it is not unlimited. It explained that in order to avoid conflicts, Congress should indicate in its invitation the possible needed statute which prompted the need for the inquiry, in addition to stating the subject of the inquiry and questions relative to and in furtherance thereof.

It explained that there are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. However, to the extent that investigations in aid of legislation are generally conducted in public, any issuance to unduly limit disclosures in such investigations necessarily deprives the people of information which are presumably a matter of public concern. In that sense, EO 464 directly impairs the right of the people to information on matters of public concern.

Concurring in the decision were Chief Justice Artemio V. Panganiban, Justices Leonardo A. Quisumbing, Consuelo Ynares-Santiago, Angelina Sandoval-Gutierrez, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Renato C. Corona, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna, Dante O. Tinga, Minita V. Chico-Nazario, Cancio C. Garcia, and Presbitero J. Velasco, Jr. Senior Associate Justice Reynato S. Puno is on leave.

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