It’s no mystery at all.
First of all, Executive Order 464, which barred Cabinet members from appearing before Congress without the President’s prior consent, was patently unconstitutional. Contrary to the propaganda, the Supreme Court (SC) did not strike it down; it voided some of its minor parts, but upheld its central provision as constitutional.
Second, President Gloria Macapagal Arroyo revoked her unlawful prohibition on Cabinet members, but not her order requiring those who appear before Congress to invoke “executive privilege” in order not to divulge any controversial or sensitive executive material.
EO 464 had to go, given the pressure that had built up against it after the Catholic bishops demanded its revocation, Fr. Joaquin Bernas, S. J. having first proposed it in a newspaper column.
Let us revisit the central provision of EO 464:
“Section 1. Appearance of Department Heads before Congress. --In accordance with Article VI, Section 22 of the Constitution and to implement the constitutional provisions on the separation of powers between co-equal branches of 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.”
Compare it with Article VI, Sec. 22 of the Constitution:
“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 to the President of the Senate or the Speaker of the House of Representatives at least three days before his 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 “ (italics supplied).
These are two different animals. EO 464 required all department heads appearing before Congress to secure the President’s prior consent. The Constitution on the other hand requires only those who appear before Congress “on their own initiative” to obtain the President’s prior consent. All others invited by either House of Congress shall appear, according to the rules of each House.
There is no way a fairly attentive reader of English could possibly misread the above-quoted constitutional provision.
And yet, the 2006 SC ruling in Senate of the Philippines vs. Ermita upheld the validity of the patently unconstitutional EO provision. And the entire Court concurred in the decision penned by Associate Justice Conchita Carpio Morales, from then Chief Justice Artemio Panganiban down to the last justice, save the present Chief Justice Reynato Puno, who was then on leave.
And disaster of all disasters, the mass media --- including some legal luminaries and political pundits writing newspaper columns ---were led to believe that the SC had junked everything unconstitutional in EO 464.
Given this painful comedy of errors, only by scrapping it could the unconstitutionality of the EO be buried forever. Thus, the revocation is not altogether without merit, but since Mrs. Arroyo was its original author, none of her critics felt obliged to applaud her for rescinding it.
Still, we are stuck with her controversial concept of “executive privilege.”
Reputed authorities on the Constitution tell us that “executive privilege” is “enshrined in the Constitution.” “Enshrined” is not the word for it; the term “executive privilege” does not appear in the Constitution. Rather, the privilege is based on the constitutional doctrine of separation of powers, and exempts the Executive from publicly disclosing to the Congress sensitive correspondence, communications, and documents, particularly those involving the military, foreign affairs and other domestic concerns.
But nothing in the Constitution says the Executive may deny Congress any information it requires, in the name of “executive privilege.” After all, the Congress alone appropriates the funds for all government operations and participates in the ratification of treaties; it alone has the power to declare the existence of a state of war and revoke any presidential proclamation of martial law or suspension of the privilege of habeas corpus. It would be quite absurd for such a Congress to be told that it has no right to know certain information in the hands of the Executive, or how certain controversial decisions were arrived at by the Executive.
To safeguard and protect “executive privilege,” all that the Constitution requires is that “when the security of the state or the public interest so requires and the President so states in writing, (the information sought by Congress shall be given) in executive session.” No statute, executive order or judicial construction can decree that Congress be denied the information it seeks because it involves the security of the state or because the public interest requires that it be withheld from Congress. The Constitution assumes the capability of Congress to safeguard executive secrets; and Congress has written iron-clad rules on “executive session” to make sure such secrets are protected.
In the Senate investigation into the aborted ZTE NBN contract, there is a suggestion that a crime has been committed. A government witness at these hearings may therefore refuse to answer questions by invoking his right against self-incrimination. But he may not invoke “executive privilege” to cover the possible existence or commission of a crime.