Gov’t asks Supreme Court to reconsider ruling on EO 464

THE government has asked the Supreme Court to reverse its ruling on Executive Order 464, claiming that the court “overlooked certain facts and circumstances which justify the consent requirement for executive officials appearing in legislative investigations.”

In a 33-page Motion for Reconsideration, Solicitor General Antonio Eduardo Nachura said President Gloria Macapagal-Arroyo did not commit grave abuse of discretion in requiring “prior consent” from executive officials before testifying in congressional hearings.

The solicitor general asked the high court to “reconsider and set aside” its decision.

EO 464 was issued on September 28, the day Brigadier General Francisco Gudani and Col. Alexander Balutan testified before the Senate on alleged electoral fraud in Mindanao during the 2004 elections.

The order has been repeatedly invoked by government officials refusing to appear before the Senate hearings on various issues including the “Hello Garci” wiretapping scandal, the North Rail project, and the fertilizer fund scam.

On April 20, the Supreme Court upheld the right of Congress to compel executive officials to appear before inquiries, so long as these hearings are done “in aid of legislation.”

The Court, however, declared constitutional the president’s right to ban executive officials from appearing during the question hour in Congress. In a question hour, Congress’s objective is only to obtain information in pursuit of its oversight function, and does not relate to specific legislation.

The high court ruled that Congress “has a right of information from the executive branch whenever it is sought in aid of legislation.”

But Nachura, in his motion, said “congressional inquiry itself may not properly be in aid of legislation,” asserting that the president may “properly prohibit” officials from appearing in inquiries “by invoking the doctrine of executive privilege.”

“In investigations where there is no legitimate legislative purpose, the president may properly refuse the appearance of executive officials,” Nachura said. “These legislative investigations have been used for partisan political purposes. They transform into legislative trials, which serve no other purpose than to damage the reputations of those who agree to appear.”

Under the doctrine of executive privilege, the president may disallow the disclosure of classified and confidential information between her and certain public officials, specifically if these are matters affecting national security and public order; information between inter-government agencies prior to the conclusion of treaties of executive agreements; and discussions in closed-door Cabinet meetings.

The Court ruled that in cases where the Palace decides to withdraw information on the ground that it is “privileged,” the executive must state and “clearly assert” the reason why such information should not be disclosed.

But, Nachura said: ” The doctrine of executive privilege is founded upon the basic principle that in order for the president to carry out his constitutional responsibility to enforce the laws, he must be able to protect the confidentiality of certain types of documents and communications within the executive branch.”

Nachura also said EO 464 did not violate any Senate rules or guidelines.

“Another limitation on the power of Congress to conduct investigations is that such investigations must be done ‘in accordance with its duly published rules of procedure,'” he said, adding that in absence of a “duly published rules of procedure” for legislative investigations, Arroyo may properly refuse the appearance of officials summoned by the Senate.

He said there is no proof that the current Senate has adopted the rules of procedure governing inquiries in aid of legislation.

According to Nachura, the 8th, 9th, and 10th Congresses have adopted these rules; no other formal adoption of rules had been made by the 11th, 12th, and 13th Congresses.

Nachura added that even the concept that the Senate is a continuing body “does not give the senators of a prior generation the right to impose its rules of procedure upon senators of a succeeding generation.”

“Under the circumstances, to impute abuse of discretion on the president would be unwarranted,” Nachura wrote, “It is premature therefore for the courts to take cognizance of the case.”

Read SolGen Nachura’s motion for reconsideration.