Passion For Reason
Be careful what you wish for…
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 00:25:00 03/07/2008
Filed Under: Executive Order 464, Churches (organisations), NBN deal, Graft & Corruption
Whoever suckered our venerable bishops to champion the repeal of Executive Order 464 ought to be sent to the dungeons of the Holy Inquisition. Remember the adage: Be careful what you wish for; you just might get it.
But to be fair to the Catholic Bishops’ Conference of the Philippines (CBCP), their pastoral statement called for “Seeking the Truth, Restoring Integrity” and asked the President to abolish EO 464 and allow her Cabinet “to reveal any corrupt acts, particularly about the ZTE national broadband network (NBN) deal, without being obstructed in their testimony.” Gloria Macapagal-Arroyo obeyed the first and ignored the second, but surely our bishops should have known the legalistic evil they were up against.
When the US Senate learned about the damaging tapes of Nixon’s conversations plotting the Watergate cover-up, the White House adopted a strategy that they called “a modified limited hangout,” and circled the wagons to thwart the release of the tapes. Nixon was caught on tape saying, “I don’t give a s—t what happens. I want you all to stonewall it, let [the witnesses] plead the Fifth Amendment, cover up or anything else.”
The repeal of EO 464 must be the Malacańang version of the “modified limited hangout”: the President cancels the wholesale gag order on her Cabinet secretaries but allows them to stonewall on damning questions. In other words, by junking EO 464, Ms Arroyo hopes to score political “pogi points” [brownie points] without making any real legal concessions.
“Effective immediately, I am revoking EO 464. Executive officials may no longer invoke EO 464 to excuse non-attendance from legislative inquiries [but they must still] abide by the Constitution, existing laws, and jurisprudence when invited to legislative inquiries.” That’s presidential double-talk saying that they can still invoke executive privilege after all. How is that possible?
One, the “executive privilege” of the President exists independently of EO 464. The privilege is built into the architecture of the Constitution’s “separation of powers” and aims to insulate the Executive Branch from intrusion by other branches (the legislative and the judicial). Executive privilege wasn’t created by EO 464; it does not disappear with EO 464.
Two, EO 464 merely laid down the procedural framework by which the President may invoke the privilege for herself and for her subalterns. Junking EO 464 merely sets aside the procedure without in any way diminishing the substance, which to start with was never really codified but was always implied and entrenched in the very structure of the separation of powers.
Three, Ms Arroyo merely repealed what was left of EO 464 after it was watered down by the Supreme Court in Senate v. Executive Secretary Ermita. EO 464 was issued to insulate Norberto Gonzales from the Senate probe on the controversial Venable contract, the million-dollar lobbying firm hired to secure US congressional grants for Charter change, for the sum of P50 million for the first 12 months. Since then, the President has invoked EO 464 to shield her against the Senate’s hearings on the “Hello, Garci” scandal, the JocJoc Bolante fertilizer scam, and the NorthRail project with the Chinese (yes, the same Northrail that ZTE’s proponents insisted they wanted to copy).
In other words, the Court struck down the half of EO 464 which enabled just about any staff member of any department of government to invoke the President’s privilege, but preserved the other half, namely, that for the President herself and her Cabinet. That is why when the Senate summoned both Romulo Neri (erstwhile Cabinet secretary) and Jun Lozada (then president of a government corporation), Neri showed up and invoked executive privilege, but Lozada’s handlers had to send him to London via Hong Kong because he couldn’t invoke the privilege. When Ms Arroyo lifted EO 464, it wasn’t the all-encompassing gag that she was setting aside, but a gag already cut in half by the Court.
Four, as if to demonstrate further mischief, soon after the Court rendered this decision, the Palace issued Memorandum Circular 108, which strangely enough still extended the privilege to non-Cabinet members. Even today, Sergio Apostol, the chief presidential legal counsel, doubts if Memorandum Circular 108 was revoked together with EO 464. “There was no clear-cut pronouncement that it [MC 108] was also abolished. The President only mentioned … EO 464.”
Finally, in addition to MC 108, Ms Arroyo can still draw on other powers to suppress the truth. She had earlier muzzled two military officers from testifying before the Senate during the “Hello, Garci” tapes hearings. In Gudani v. Senga, the Supreme Court held that the two officers may be stopped from testifying not on the basis of EO 464 but on the basis of the President’s power to command the obedience of the military in her capacity as commander in chief.
Many Filipinos—not all, but significantly many and impassioned for good reason—have arrived at their own conclusions about what really happened in the ZTE-NBN scandal and, in their hearts, have concluded that the stink has risen to the highest levels of power. When people insist on Neri’s Senate testimony or wait for a Supreme Court ruling, it is not that they are not convinced and still await more evidence. It is merely that they still hope to make institutions work and let constitutional processes, long manipulated, fulfill their true purpose.
The President’s stifling of Neri’s testimony suggests the “adverse inference” that if allowed it will be prejudicial to the President. The President may still waive the privilege and allow Neri to tell the whole truth, or she can wait and hope for a sympathetic ruling from the Supreme Court and let the justices draw the historical flak from which she alone will profit.
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