MANILA, 30 September 2005 — A noted Filipino constitutional expert said yesterday President Gloria Macapagal Arroyo could not invoke executive privilege to cover up allegations that she stole last year’s elections.
Bernas said Executive Order No. 464, which Arroyo issued on Wednesday, prevented the legislative branch from exercising its role as “fiscalizer” and disturbed the balance of power among the branches of government.
“It’s a gag rule. She’s obstructing the work of the legislature. She is blocking the checks and balances among coequal branches of government. We are still a rule of democracy, not a rule of one woman,” said Bernas, a Jesuit priest who is dean emeritus of the Ateneo Law School.
Administration and opposition senators also said yesterday they would challenge Arroyo’s gag order before the Supreme Court.
The 1987 Constitution says only department heads cannot attend congressional hearings without the president’s permission, said Bernas. He said this did not apply to Brig. Gen. Francisco Gudani, who testified Wednesday before a Senate committee on alleged electoral fraud involving the president and her husband.
“The revelation of Gudani is not covered by executive privilege. He should reveal it because it’s a criminal offense,” he said.
Gudani, assistant superintendent of the Philippine Military Academy, can go to court to question the order relieving him of his post for attending the Senate hearing, Bernas said.
A member of the body that drafted the 1987 Constitution, Bernas also scored the president for disregarding the rule of law in order to protect her Cabinet.
“She is refusing to reveal things, but what she wants to cover, I don’t know,” said Bernas, who also writes for the Philippine Daily Inquirer.
Arroyo’s order, issued Wednesday, prohibits government, police and military officials from appearing at congressional hearings without her consent. The order outlines procedures for official appearances, including a three-day notice and the prior submission of questionnaires.
Bipartisan Support
Senate Minority Leader Aquilino Pimentel said he would challenge the order before the high tribunal.
“Public officials in this country are obliged to cooperate with the lawmaking body so that their problems can be addressed,” Pimentel said.
“There is bipartisan support that this EO would not do any good for the relationship between the executive and the legislative,” Senate President Franklin Drilon said. “We support the plan of Senator Pimentel to bring this to the Supreme Court.”
Senator Miriam Defensor-Santiago said that under the constitution, a Cabinet member needed to get the president’s consent only if he would be testifying on his own initiative in the Senate or the House.
Even Arroyo’s alies in the House of Representatives, including Speaker Jose de Venecia, rejected the controversial order and said they would continue to invite executive heads and military officials to its hearings.
In a joint statement, De Venecia, Majority Floor Leader Prospero Nograles, House Deputy Speaker for Mindanao Gerry Salapuddin, Appropriations committee chairman Rolando Andaya, Cebu Representative Antonio Cuenco, and Bukidnon Representative Juan Miguel Zubiri said that while they respected the “executive privilege,” the House also had the inherent duty to invite them “in aid legislation” and “by virtue of the people’s right to public information.”
“We respect the inherent right of the president of the Republic to claim “executive privilege” under the Constitution with respect to the appearances in Congress of executive department heads and executive officers who in her judgment are covered by such privilege,” they said.
“We, however, maintain that the House shall continue its inherent duty to invite executive heads and officers ‘in aid of legislation’ and by virtue of the people’s right to public information.”
Arroyo issued Executive Order 464 prohibiting government officials from appearing in congressional hearings without her consent.
Malacañang claimed that the opposition was only using the hearings to get information that would be used against the administration.
De Venecia and his allies denied the allegation.
In this regard, the lawmakers saw no valid reason why the president should not agree to the appearance in the House of her department heads and officers.
Palace Can’t Ignore Summons
“But if the testimony is elicited on the request of a chamber, the official has to appear and testify even if the president does not consent,” said Santiago, usually a staunch Arroyo ally.
The Senate can cite an official for contempt if he rejects or evades an invitation to testify, she said.
“Under the Constitution, the only power given to the president is to compel that the investigation should not be held at a public hearing but in executive session,” Santiago said.
Saying the president had no legislative powers, Santiago said an executive order issued by Arroyo would only have the force of law if it was issued pursuant to a law passed by Congress.
“If the president merely wants to give instructions to her subordinates in the executive department, then she should not issue an EO but an administrative order. But whether EO or AO, a presidential issuance which is not based on a specific statute has no power to bind the Congress,” she said.
Fallout Embarrassing
Santiago said the EO’s wording that the Constitution guaranteed the separation of powers was flat out wrong.
“In pragmatic terms, it is a cannonade against the Senate. Already, it has elicited fallout which at best is embarrassing for the president, and at worst is a total rejection of the president,” Santiago said.
Administration Senators Francis Pangilinan, Richard Gordon and Rodolfo Biazon called for a less confrontational approach, proposing a dialogue between the Senate and Malacañang to avoid a constitutional crisis.
“This looks like a cure that is worse than the disease. I propose the holding of a dialogue between the Senate and Malacañang to defuse the growing tension,” Pangilinan, the Senate majority leader, said. “I am certain that Malacañang knows it is futile for it to even try to make the Senate inutile and subservient. The Senate, on the other hand, will never give up its constitutional duty to act as a check and balance to the executive branch,” Pangilinan said.
Oppressive Orders
House Minority Leader Francis Escudero told reporters in Cebu the United Opposition would fight the order. “We will not definitely take this sitting down.”
Archbishop Oscar Cruz said Arroyo’s crackdown on street protests and Wednesday’s gag order were indications of insecurity.
Cruz said the president was becoming less credible and people were becoming more suspicious of her actions as a result of the quashing on Sept. 6 of the impeachment complaints against her. He said this left controversies unresolved.
Protesters Dispersed
Police yesterday stopped dozens of leftist activists from marching to the presidential palace yesterday as President Arroyo held an emergency meeting of her Cabinet over a brewing conflict with lawmakers.
Police made no arrests, but broke up the ranks of activists preparing to march on a busy road in Manila’s central district, pushing and shoving the protesters, including some opposition lawmakers.
“We can’t allow the democratic space to disappear,” said Robert Reyes, a Roman Catholic priest and a rally organizer.
“The democratic space is beginning to narrow down. This is what we’re fighting for.
Arroyo’s government, facing small but regular protests calling for her removal from office, has imposed a “no permit, no rally” policy that it says is designed to dissuade leftist activists from agitating street violence.
Her opponents have marshaled crowds of 5,000 to 40,000 for occasional demonstrations in the Makati business district to demand that she step down over allegations of election cheating and graft within her family. Critics say the new policy is akin to the martial law imposed in 1972 by late dictator Ferdinand Marcos, whose 20-year rule was ended in 1986 by street marches of up to 1 million people. The “people power” uprising was repeated on a smaller scale in 2001 to chase out Arroyo’s predecessor, Joseph Estrada. (With reports from agencies)
