An EO 464 catechism

Sounding Board
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:05:00 03/03/2008

[Legislative] hearings have served an important role in ventilating issues of profound national concern. In fact, the modern function of hearings is often simply to focus the national attention and place a pressing issue on the nation’s agenda. Some might say that, in certain legislative sessions, such consciousness-raising ranks among Congress’ most constructive accomplishments. —Lawrence Tribe

MANILA, Philippines - Pardon me if the catechist in me should come out, but there is so much confusion about EO 464 that I thought the catechetical method might be the clearest approach. So, here goes:

Q. Is Executive Order 464 still alive?

A. The Supreme Court in Senate v. Ermita said: “Sections 2(b) and 3 of Executive Order No. 464 ... are declared VOID. Sections 1 and 2(a) are, however, VALID.”

Q. What does the voided Sections 3 say?

A. It says: “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.”

Q. Who are the officials in Section 2(b) referred to in Section 3.

A. They are:

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

“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;

“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;

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

“Such other officers as may be determined by the President.”

Q. Are there any officials whom the President may prevent from testifying?

A. If the hearing is an inquiry in the exercise of congressional “oversight function” under Article VI, Section 22, Department Secretaries may not appear without the prior consent of the President. This is repeated in Section 1 of EO 464 which the Supreme Court declared valid.

If the hearing is “in aid of legislation” under Article VI, Section 21 of the Constitution, anyone, except the President and Justices of the Supreme Court, may be summoned.

Q. If the President cannot use EO 464 to block the testimony of officials enumerated in Section 2(b) above, can she still prevent testimony?

A. Yes, by claiming that the testimony being sought is covered by “executive privilege.”

Q. What is “executive privilege”?

A. It is the constitutionally recognized right of the President to withhold certain types of information from Congress, the courts or from the public.

Q. What types of information can be covered by executive privilege?

A. Section 2(a) of EO 464, upheld as valid by the Supreme Court, enumerates the following which are taken from earlier decisions:

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 closed-door Cabinet meetings;

5. Matters affecting national security and public order.

Q. Who may claim executive privilege?

A. Only the President or a high official who, after consultation with the President, is authorized by her to claim the privilege.

Q. Must every claim of executive privilege based on the above enumeration be honored?

A. No. The Court in Senate v. Ermita said that in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting. Thus it is not for one claiming executive privilege “to unilaterally determine that a duly-issued Subpoena should be totally disregarded.”

Q. Who then determines whether the claimed privilege should be honored?

A. The Court. Thus, for instance, when the Nixon administration claimed privilege for certain tapes about the Watergate break-in, the Court, after looking at the claimed privilege behind closed doors, held that the tapes were not covered by privilege and should be released.

For this reason, our Court also said that “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.” The lack of specificity renders an assessment of the potential harm resulting from disclosure impossible.

Q. What was the opening sentence of the Court in its decision on EO 464?

A. “A transparent government is one of the hallmarks of a truly republican state.”

Q. The President has formed a legal team to study what to do with the appeal of the Bishops to abandon EO 464. What should they say?

A. They should say, “Madam President, read Senate v. Ermita and obey it and thereby begin the process of your salvation.”

Should bishops lead political actions?

Public Lives
By Randy David
Philippine Daily Inquirer
First Posted 02:44:00 02/16/2008

MANILA, Philippines -- The Philippine Daily Inquirer’s editorial Friday, titled “Checkmated bishops,” sharply rebukes the Catholic bishops for refusing to take up the activist role that the late Jaime Cardinal Sin had played in past political crises: i.e., “to make clear to the populace what should be done,” and “to lead the people.” The editorial echoes a popular, if dangerous, view. I am sure the editors will not mind this rejoinder in the spirit of democratic debate.

But, first, a disclosure. My younger brother, Pablo Virgilio David, is auxiliary bishop of the archdiocese of San Fernando City in Pampanga province. He is also a member of the permanent council of the Catholic Bishops’ Conference of the Philippines (CBCP). The proper role of the clergy in the modern world has been a recurrent topic of our conversations. We have looked at the question critically from the perspective of social theory and of Catholic doctrine. I can say in all candor that my bishop-brother is more open to the idea of the clergy playing an activist role in Philippine political matters during crucial moments, than I am willing to concede as a secular democrat.

The Inquirer editorial states: “If there’s any sector that should have the intellectual sophistication and moral conviction to make clear to the populace what should be done, it should be the Catholic bishops.” I grant the intellectual sophistication and moral conviction of many of our Catholic bishops, but I would not want them, as religious leaders, to tell me what to do or what to believe in politics, or law, or science, or art, etc.

To beg them to tell us what to do or to lead us in the fight against an abusive regime is to authorize them to substitute their judgment for the public’s own evolving opinion. It is one thing to welcome a reading of events from the moral standpoint of the clergy, but it is another to allow that interpretation -- for all its sophistication and conviction -- to dominate the entire horizon of our understanding of the world. I am glad that today’s bishops no longer treat us like children. They have prodded us to form “circles of discernment,” to draw strength from the solidarity we can offer to those who risk their lives as they speak the truth, and to decide as a community what forms of action we should undertake. It is all they should do in a society that aspires to be a democracy. That is not an abdication of their moral duty; it is a prudent recognition of the limits of their authority.

Nations that put religious leaders at the forefront of the State are becoming a thing of the past, notwithstanding the resurgence of a kind of religious fundamentalism that seeks to colonize every sphere of society. Our break from such a tradition was decisive at the very moment of our birth as an independent nation -- in the drafting of the Malolos Constitution. We cannot return to it. No doubt, we continue to feel the influence in our modern lives of a moral code supplied by religion. As an element of our moral identity as a people, it has a positive impact on our society. Be that as it may, I think it is a great setback to be waiting for new Cardinal Sins to make clarion calls summoning us to the EDSA highway [site of people power uprisings -- Editor] or to anywhere else, just as I think it is a setback politically when religious leaders dictate government policy to those they have helped install to power.

I share everything else that the Inquirer editorial expresses in urgent tones. “If the administration has become a constitutional wrecking crew, then what should people of conscience do?” the Inquirer asks. We should trust that conscience is not a monopoly of the bishops. Pope Benedict XVI once said that the role of the clergy is to form and educate consciences, and not to substitute their conscience for that of the laity’s. In the face of a political crisis, many of us will find this papal reminder conservative. But, insofar as it springs from a respect for the autonomy of functional spheres, it is correct, modern, and democratic.

To ask the bishops to instruct us to do more, on account of the moral influence they wield, is to follow a shortcut. It is analogous to begging the military to launch a coup to topple a government, using the armed power that the Constitution has placed in their hands. These are shortcuts because they bypass the longer and circuitous route of political conscientization and organization. Consequently, the regime change that is the fruit of the journey cannot be the achievement of the people themselves. They are brought to where they are without knowing where they are. The journey does not teach them anything about themselves or about politics. A new government is formed in their name, but they cannot see themselves as its authors or its stewards.

If all this sounds familiar, it is because we’ve been there before. In our impatience, we, who think of ourselves as intellectually sophisticated, lead the march for change and leave the rest of the people behind. When the dust settles down, seeing that the people are back to where they came from, we ask, perplexed, why they have gone back to their old ways. The fact is they never left. We did not give them the chance to think for themselves, find their own way, and free themselves.

It bothers me to have to write like this when we appear once more on the verge of a regime change, and all that is needed, it seems, is to get our moral elders to lead the way. I beg to disagree. At the risk of being misunderstood, I consider political action resulting from the slow boil of the people’s anger ultimately more enduring than any dish we can cook with microwave heat.

February 29 Inter-Faith Rally for Truth and Accountability in Legazpi City

While thousands gather in Makati City for the Inter-Faith Rally on 29 February, similar, albeit relatively smaller rallies, were also held in many cities around the country, Legazpi City included. The nation wants to know the whole truth about the NBN-ZTE scam and the extent of corruption in government.


Scenes from the Via Crucis for Truth and Justice in Legazpi City on 29 February 2008. The activity was organized by the Krusada para sa Katotoohan asin Katanosan, and participated by different Church groups, Catholic schools and parish organizations in the city . A separate rally organized by militant groups was held in Daraga, Albay. The two rallies traversed Rizal Street from opposite directions and converged at Peñaranda Park at Old Albay District.