Undisputable mandates

The two recent unanimous decisions of the Supreme Court (SC) on E.O. 464 and the Calibrated Preemptive Response (CPR) issued in a span of five days look decisive and conclusive enough. I thought that they provided fixed and definite signposts to follow as we try to put a satisfactory closure to the nagging issues that brought about the present crisis. Unfortunately these two vital and important SC decisions seem to have spawned further controversy particularly as to the real winners and losers in the cases. While one side readily claims victory, the other side quickly denies actual defeat. Both sides are again giving their own different interpretations of the rulings.

The truth is neither side was completely upheld or rebuffed by the SC. The petitioners who questioned E.O. 464 and the CPR can not really claim absolute victory. Neither can the administration admit utter defeat. This is quite clear from the dispositive portions of the decisions. The various petitions questioning E.O. 464 (G.R. Nos. 169659, 169660, 169667, 169777, 169834, and 171246 all dated April 20, 2006) were "partly granted" only. So were the petitions questioning the CPR policy (G.R. 169838, 169848 & 169881 all dated April 25, 2006). The real and only winner in these cases is the "rule of law" as the SC once more upheld the supremacy of our Constitution rather than the supremacy of any contending side over the other.

Thus while the SC said that senior officials in the executive department including those in the military and the police cannot snub Congressional investigations in aid of legislation as they contravene the Congressional power of inquiry, it also ruled that all heads of the executive department cannot be forced to attend said investigation without presidential consent when the subject of the inquiry falls within the scope of executive privilege. The SC itself admits that executive privilege is "not a clear and unitary concept" and "encompasses claims of varying kind" but it has specified and limited them into: "state secret privilege" where the executive department can withhold disclosure of information that would subvert crucial military or diplomatic objectives; "informer’s privilege" or the privilege of the administration not to disclose the identity of persons who furnish information of violations of law; and "generic privilege" for internal deliberations covering intra-governmental documents reflecting advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated. The ruling appears clear and definite enough. But apparently it cannot prevent the Executive Branch from invoking "executive privilege" whenever it feels the need to protect its own turf? So let’s brace ourselves for another round of worthless and protracted legal skirmishes by the simple expediency of creating or spotting the ever-present legal loopholes.

In the same fashion, the SC struck down the CPR policy enunciated by the government and said that only maximum tolerance as defined in B.P. 880 is allowed. But it also upheld the "no permit no rally policy" of the government as contained in B.P. 880 on which the CPR is based. Hence, the police and the administration are now claiming that CPR was only a nomenclature that also means "maximum tolerance" which is what they have been practicing all along in breaking up rallies without permits. The Sol Gen even went as far as declaring they will continue to ban anti-government street protests that pose a "security risk" despite the unanimous SC ruling. So we are bound to have another long series of legal battles on the issues that may arise following such statements from the administration.

Whatever may the interpretations of the rulings as to the real winner or loser the contending parties must realize and cannot dispute that the very acts they did which precipitated the filing of the cases and the issuance of the rulings can no longer be done and continued hereafter. Hence the President cannot prevent senior officials of the Executive Branch from testifying in Congressional inquiries in aid of legislation, neither could members of Congress abuse this power of inquiry to advance their own political agenda or browbeat the witnesses appearing before them. Rallyists have to secure permits before peacefully assembling in public places outside the designated freedom parks and the Mayors must not deny the permits except when there is a clear and present danger of a substantive evil which they must prove. Most important of all, the police cannot preempt the peaceful assembly of the people or violently break it up even if the rally or assembly has no permit. Maximum tolerance is simply incompatible with preemption. It means peaceful dispersal and exercise of the highest degree of restraint. Violence should be avoided unless provoked by violence. These are the clear undisputable mandates of the SC decisions.

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