Weighing in on the ‘Scrap EO 464’ call

Alecks,

I am confused as to the role of Sen. Joker Arroyo in the EO 464 issue. We all know that he was the brains behind the measure while serving as President Corazon Aquino’s executive secretary. He would later represent the Senate in the Supreme Court hearings regarding the legality of the EO.

Nowadays, he seems to have changed his colors anew as he claims that the EO 464 debate is moot and academic as he explains that executive privilege will cover Malacanang’s tracks should EO 464 be scrapped with finality.

Question. Was he involved in President Gloria-Macapagal Arroyo’s pullout of the EO from the Malacañang archives right from the very beginning?

A legally precise call for the CBCP would have been for GMA to waive any claim of executive privilege in the ongoing senate inquiry on ZTE-NBN, and in other similar inquiries, and not the scrapping of EO 464. However, given the context under which CBCP called for the scrapping of EO 464, they can be forgiven for the legal imprecision and their call taken instead to mean exactly that: a call for GMA to waive executive privilege. Anyway EO 464 appears to be the language understood by the public, to refer to the refusal by executive officials to testify or submit certain documents under claim of executive privilege as what Neri did.

The waiver of executive privilege would have been the precise call since, as observed by your podcasters, it now exists independently (in fact constitutionally) from EO 464 under the ruling of the SC in Senate vs. Ermita. Regarding its usage by the Chief Executive, the SC in that case has laid down the key parameters of a claim of executive privilege as an exception to the breadth of the Congressional power of inquiry. Regarding the scope of executive privilege, the Supreme Court cited various sources that point to the different types of information that may be recognized as privileged. These may include state secrets regarding military, diplomatic and other national security matters as well as presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. However, that a type of information is recognized as privileged does not mean that it would be considered privileged in all instances. In determining the validity of a claim of privilege, it is not enough to determine whether the information falls in any of the recognized privileges, it must also be asked whether the privilege should be honored in a given procedural setting.

Given the case-to-case nature of determining the validity of a claim of executive privilege, what is important are the principles to be considered in reaching such determination:

(1)Executive privilege is recognized only in relation to certain types of information of a sensitive character.
(2)A claim thereof may be valid or not depending on the ground invoked and the context in which it is made.
(3)Executive privilege may be invoked in relation to specific categories of information, but not to categories of persons.
(4)A claim of privilege, being a claim of exception, the grounds therefore must be clearly asserted and not merely implied. However, Congress must not require the executive to state the reasons for the claim with such particularity as to in fact disclose the information.
(5)In light of the highly exceptional nature of the privilege, the power to invoke the privilege is limited to the President, but may authorize the Executive Secretary to invoke the privilege on his or her behalf provided that the Executive Secretary states that it is “By order of the President”.
(6)When an executive official being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege.
(7)The extraordinary character of exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

With a President acting in good faith, the parameters laid down by the Supreme Court should be workable enough. Unfortunately, we do not have a good faith president in GMA. We can then expect overbroad claims, requiring frequent resort to the Supreme Court. GMA, under such practice, is able to buy time. What the CBCP statement does is to make such buying of time politically costly.

I have a simple mind and a simple minds works wonderfully simple.

Here is a corrupt executive being pursued by a corrupt Congress and the issue is being debated before a corrupt court.

If one corrupt entity is disfavored by the decision of the corrupt court, that entity will go to the corrupt and gullible electorate to fan their bias and emotion through the streets.

So where is the “people-based” issue on this entire brouhaha?

Bwaahahahahah…