E.O. 464 is unconstitutional

“When you have no basis of argument, abuse the plaintiff.”
—Cicero

A few days ago, Gloria Arroyo issued Executive Order 464. This E.O effectively blocks the heads of the different departments of the Executive including military officers from testifying in Congress as prior approval by the president (the fake president, that is) will be required.

E.O. 464 states: “In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.”

Now let us examine the validity of this E.O by scrutinizing the legal bases it cites.  This E.O. invokes two justifications: one is Article VI, Section 22 of the Constitution and two is the principle of separation of powers between co-equal branches of the government (legislative, executive and judiciary).   

First let us see what Article VI, Section 22 of the current Constitution provides. So I quote below this provision under the heading Legislative Department.

“Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.”

Now note that the first sentence of the provision contemplates two possible scenarios as underscored by the disjunctive word “OR”.  First scenario is when heads of departments, “upon their own initiative”, “with the consent of the President” appear before the House to testify. And second scenario is when heads of department “upon the request of either House” appear to testify.
Any law student and in fact any lay person will clearly see that in the second scenario there is no more need for the consent of the President.  Otherwise the provision should be written somewhat like this: “With the consent of the President, the heads of departments may, upon their own initiative or upon the request of either House, appear before…”

And further the E.O. constitutes an abuse of authority as why include Generals and other lower ranking military officers in this gag order if no legal basis supports it.  Are the “General” rank and other lower military positions fall under “head of departments”? Definitely not but in the E.O. one can notice the deliberate expansion of the coverage. 

Now let's go to the second justification of the E.O. which is the principle of separation of powers between co-equal branches of the government.  This principle is expressed in the first Sections of Articles VI, VII and VII of the 1987 Constitution, which defines the powers and scope of the Legislative, Executive and the Judicial Departments respectively.   

It is so funny that the legal team of Malacañang invokes this principle blindly. It is as if all other principles and provisions in the Constitution do not exist.  Take for example the principle of checks and balance, the principle of transparency and accountability of government and the rights of the people to information.
Apart from aiding legislation, the spirit of this provision is without a doubt to provide a system of checks and balance to the powers of the Executive and at the same time a system to ensure transparency in governance. The Legislative Department is thus granted the power of legislative inquiry as provided for in Section 21 of the same Article. (Note also that the Section quoted below is the preceding Section of that which is used by the EO.)   
          
“Section 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.”

Thus, first and foremost, an inquiry in aide of legislation is a legitimate power of the Legislative as defined by the highest law of the land – the Philippine Constitution.  And it is not in any way violative of the principle of the separation of powers.

Executive Order 464 is evidently unconstitutional and downright a big farce.  What is clear is that this is another way of Gloria Arroyo to stifle the truth as she utilizes all the state’s resources and power to cling to the presidency, which she is holding dubiously.  Just as the Calibrated Preemptive Response or the CPR issued earlier to suppress street protests, these are meant to curtail civil liberties and ensure the survival of this administration.
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