‘Not a one-woman rule’
Bernas: Gag order is unconstitutional

First posted 00:28am (Mla time) Sept 30, 2005
By Armand N. Nocum, Juliet Labog-Javellana, Christian V. Esguerra
Inquirer News Service

FATHER JOAQUIN BERNAS, dean emeritus of the Ateneo Law School and a noted constitutional expert, said 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 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,” he said. “We are still a rule of democracy, not a rule of one woman.”

Administration and opposition senators also said yesterday they would challenge Ms Arroyo’s gag order before the Supreme Court.

The Constitution says only department heads cannot attend congressional hearings without the President’s permission, said Bernas. He said this did not apply to Brigadier General Francisco Gudani, who testified Wednesday before a Senate committee on alleged electoral fraud involving the First Couple.

“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 is also an Inquirer columnist.

Ms 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.

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.

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 Ms 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.

“I am afraid we are in a constitutional confrontation. I hope this won’t escalate into a crisis,” Biazon said, urging Palace and Senate officials to sit down to discuss a more acceptable rule.

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 Ms 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.

Alienating people

“This is primarily why she is finding it harder to govern,” he said in a statement. “This is basically the reason why she gives more oppressive orders. And this is precisely why there are also more dissent and resentment among an increasing number of people.”

Fr. Robert Reyes yesterday said the Arroyo administration was “alienating” the people because the President was more concerned about keeping her position.

“We are not moving forward,” said the activist priest. “The entire government machinery, all its human, material and financial resources, are constantly mobilized to keep one person in power.”

Reyes criticized Archbishop Fernando Capalla, outgoing president of the Catholic Bishops Conference of the Philippines and an Arroyo ally.

“Is there much we can expect from either the government or the Church who both speak the language of the elite, the language of status quo? There seems to be little that the Church can say now because it has chosen to say precisely that -- little,” he said. With a report from Jolene R. Bulambot and Jhunnex Napallacan, PDI Visayas Bureau