EO ?6?

The writing of Executive Order 464 has also produced certain bold strokes on the wall, apparently illusory, but the most worrisome is the sad script about a country stuck with a lame duck president so palsied to leverage what is left of her influence towards certain national goals aspired, as she is frenzied to becalm a restive citizenry. No, it was not an undeclared martial law but a declared war against the Senate whose collaboration she direly needs to sidetrack those who are hell-bent chasing her out of her bower.

What were they thinking? Well, they weren’t. Here’s why. If it is not a Hail Mary pass, EO 464 is ill-thought and ill-advised. And, of course, ill-timed, considering that an overwhelming number of Filipinos believe the charges of presidential “stealing, cheating, and lying,” which are yet to be threshed out in the proper forum.

First of all, the power of the legislature to inform itself through legislative investigations, underwritten by the power of contempt, is anchored upon long-accepted traditions. While not unlimited, it is rooted on the right of self-preservation, the ultimate goal of any society. The inevitable opposure as well as corollary to that power is the duty of the legislators to inform the people about matters of public concern. The Philippine Supreme Court in Chaves vs. PCGG (1998), which EO 464 is conveniently (and maybe deceptively) shown to rely on, said so in no uncertain terms:

This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honesty, faithfully and competently performing their functions as public servants. Undeniably, the essence of democracy lies in the free flow of thought; but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people.

How could they miss it, if they were not frantic and in haste, or frantically in haste like covering up the footprints and the fingerprints on the crime scene before the detectives arrive?

That “in republican government, the legislative authority predominates” is the other principle underlying a tripartite system that was ignored. What was seen by James Madison, the father of the United States constitution, as elementary then (Federalist, No.51) remains fundamental today. (In a number of cases in the United States involving similar tug of war between cabinet secretaries and congressional committees, mostly settled before reaching the Supreme Court, executive privilege has thus far yielded to legislative power.) Constitutional tradition concedes that Congress has as much power to enact laws as to oversee their enforcement by the executive branch. This is the power of congressional oversight.

In contrast, “executive privilege” is a theory based upon the Lockean claim that the president, likened to a king, has “the power to act according to discretion for the public good, without the prescription of law and sometimes even against it.” This claim is however justified only during emergencies and national strife or similar situations which are not even pretended in EO 464.

Now, the heads of departments, executive officials and public officers mentioned in the EO are between a rock and a hard place, i.e., between the wrath of a presumptive empress dangling the power of control over them and the indulgence of some grandstanding senators whose tempers are equally short for feigning and malingering witnesses summoned to inform them truthfully on pain of contempt citation and incarceration.

If the judiciary, the third party of the tripartite arrangement, trifles with its role the same way, what could have been seen written on the wall as EO ?6? might not be far from being an illusory after all. God bless the Philippines.