Supreme Court strikes down EO 464 and Calibrated Pre-emptive Response but rules PP 1017 constitutional
The Supreme Court handed down unanimous decisions against two controversial government policies — EO 464 and the Calibrated Preemptive Response policy — but nonetheless left openings for the government to implement them anyway. EO 464 was effectively used by the Administration to keep key senior government officials from appearing before Congressional investigations. The Court ruled that order unconstitutional and upheld Congress’ right to compel senior executives and military officials to attend inquiries. But it also said the President could invoke “executive privelege”, allowing her to not give consent for certain individuals to testify.
The Court also ruled that the Calibrated Preemptive Response against rallyists was unconstitutional and instructed the government to revert to its “maximum tolerance” policy and implement the Public Assembly Act of 1985. It also ruled that Proclamation 1017 on Emergency Powers was within the Constitution but its implementation was abused and illegal.
Executive Order 464
In junking EO 464, the Supreme Court upheld the right of Congress to compel senior executives and military officials to attend congressional inquiries “in aid of legislation”. Nevertheless, it ruled that the President may invoke Executive Privilege which must include “precise and certain reasons for the claim” coupled with “an announcement that the President has not given her consent.”
The Court declared that executive privilege covered confidential or classified information, including:
- conversations and correspondence between the President and a public official
- military, diplomatic and other national security matters which in the interest of national security should not be divulged
- information between inter-government agencies prior to conclusion of treaties and executive agreements
- discussion in closed-door Cabinet meetings
- matters affecting national security and public order
However, the Court struck down Section 2 (b) and 3, which cited categories of persons (i.e. senior officials, PNP and AFP officers, and others) instead of categories of information. In other words, the section tried to cover all public officials. It prematurely invoked or implied executive privilege even if the information to be disclosed has not been asserted as confidential. Mere invoking of EO 464 is “insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case.”
President Arroyo issued EO 464 last 28 September 2005 after National Security Norberto Gonzales was invited to testify before a Senate panel on the controversial Venable LLP contract and after two military officers appeared before the Senate Committee on National Defense which began an investigation on the “Hello, Garci” controversy.
The Court voted 14-0 with Senior Associate Justice Reynato Puno on leave.
Nothwithstanding the SC's decision, three high government officials -- Finance Secretary Margarito Teves, Trade Secretary Peter Favila, and Internal Revenue Commissioner Jose Buñag -- all failed to attend the first Senate hearing called after EO 464 was declared unconstitutional.
Calibrated Pre-emptive Response
Following the decision on EO 464, the Supreme Court voided on 25 April the government’s Calibrated Preemptive Response (CPR) policy. The court ordered the government to stop using CPR and strictly observe the requirements of maximum tolerance stipulated in Batas Pambansa No. 880 (The Public Assembly Act of 1985).
The Court also ordered the Department of Interior and Local Government to strictly implement Section 15 of BP 880. It requires every city and municipality in the country to designate at least one suitable “freedom park” where demonstrations or meetings may be held at any time without a prior permit. LGUs were given 30 days to designate specific freedom parks. If no parks are identified, all public parks and plazas of the municipality or city shall be deemed freedom parks. In the meantime, rally permits can only be denied “on the ground of clear and present danger to public order, safety, convenience, morals or health.”
The CPR was announced by Executive Secretary Eduardo Ermita on 21 September 2005. Ermita said, “The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance.” Under the law, maximum tolerance means “the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.” After Ermita’s announcement, several anti-government rallies were dispersed violently and rally leaders were arrested.
Petitioners against CPR argued that it is “preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy.” Furthermore, “it violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.”
The Court sustained the constitutionality of BP No. 880, saying, “it is for the benefit of the rallyists, not the government.” BP No. 880 simply “regulates the time, place, and manner of the assemblies.”
The Court voted 13-0 with Senior Associate Justice Reynato Puno and Justice Minita Chico-Nazario on leave.
PP 1017 constitutional, but arrests illegal
The Supreme Court declared Presidential Proclamation 1017 constitutional in terms of calling on the AFP to prevent lawless violence. But provisions of PP 1017 that commanded the AFP to “enforce laws not related to lawless violence” were declared unconstitutional. General Order No. 5 is partially constitutional since it provided a standard to the AFP and PNP to implement PP 1017, but the portion citing “acts of terrorism” was declared unconstitutional because terrorism is not legally defined by any existing law.
Also declared illegal were the warrantless arrests of Randy David, Ronald Llamas, and members of KMU and NAFLU-KMU; and the imposition of standards on media or any form of prior restraint on the press, including the warrantless search of the Tribune offices and whimsical seizure of its publications. Filing of charges are expected against the violators of this ruling.
Politicians’ Initiative
In what was described by Constitutional expert Fr. Joaquin Bernas, SJ as an “act of desperation”, the government is attempting to revise the Constitution through a so-called People’s Initiative and signature campaign. The preferred mechanism was a nationwide Barangay Assemblies which the DILG ordered conducted on 25 March and 21 October 2006. While the order did not include Constitutional Amendments, this item nonetheless took prominence in the discussions subtly included in “current issues” affecting the country and the barangay.
Amendments or simple changes to the Constitution can be done through People’s Initiative, petitioned by at least 12% (about 5.2 million) of the total number of registered voters. Of these, at least 3% per legislative district must be represented. However, revisions (or an overall change in structure) to the Charter -- like shifting to a new form of government as the Administration is attempting -- can only be done through Constitutional Convention or Constituent Assembly.
The main legal obstacle against people’s initiative is its lack of implementing law as required in the Court’s decision on the Santiago vs. Comelec case in 1997. The Court said, “the Comelec should be permanently enjoined from entertaining ... any petition for initiative on amendments to the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.”
Granting that enough signatures have been collected, the Election Registrar must still ascertain genuineness of petitioners’ signatures before a formal petition can be filed in Comelec. The validity of signatures is now being contested after several reports of alleged releases of monies to local government officials to pay signature solicitors, buy signatures, and purchase food as giveaways in exchange for signing blank forms.
Constituent Assembly is also being pushed simultaneous with People’s Initiative. Last 25 April, while still on recess, Rep. Constantino Jaraula along with 172 congressmen filed Joint Resolution 1230 to propose revisions in the 1987 Constitution. Rep. Jaraula said the “magic number” (pegged at 195 out of 236 congressmen and 24 senators to raise the “three-fourths of Congress” argument even without any senator voting) could be obtained during the plenary.
The House Minority filed on 29 March 2006 HR 1211 (with 51 endorsers) to affirm that the Senate and House should vote separately in approving amendments to the Constitution. The resolution also called for widespread consultation and total transparency in its proceedings.
Heated debates are now being anticipated when session resumes on 15 May.
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