Posted by: nupl | November 11, 2007

DND Secretary, 8 generals invoked Palace circular to snub Senate hearing on revived Hello Garci hearing; Lawyers’ group told Defense chief, 8 AFP generals: MC 108 has no legal basis.

September 8, 2007

Press Release

The human rights lawyers’ group National Union of Peoples’ Lawyers (NUPL) on Saturday said the equally controversial Memorandum Circular 108 (MC 108) which was invoked by Defense Secretary Gilbert Teodoro and eight other Armed Forces of the Philippines (AFP) generals to justify their non-appearance in last Friday’s Senate hearing on the Hello Garci wiretapped scandal has no legal basis, therefore illegal and unconstitutional.

In a press statement, the NUPL asserted that the Supreme Court, in its decision nullifying Executive Order 464, has upheld the power of Congress to summon executive officials in congressional inquiries in the case Senate President Franklin Drilon vs. Executive Secretary Eduardo Ermita, when it declared that “when the inquiry in which Congress requires their appearance is in aid of legislation under Article VI, Section 21, the appearance is mandatory. While the executive branch is a co-equal branch of legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.”

The lawyers’ group said if President Gloria Macapagal-Arroyo wants to prohibit officials from appearing, she must personally or through Secretary Ermita claim confidentiality through the principle of executive privilege. The NUPL said the executive privilege as required by the SC decision on EO 464 should convince the Senate if the issue or issues on hand constitute a state secret, part of an internal Cabinet meeting, part of a foreign treaty or an issue of national security.

“It is President Arroyo herself or through her Executive Secretary who should explain and convince the Senators why her Cabinet and military officials are barred from testifying because the Hello Garci tape is either a top secret, a national security concern, part of an internal meeting among Cabinet and military officials or part of a foreign treaty. But the Hello Garci scandal is not a top secret, not part of a foreign treaty, not part of an internal meeting among key officials and definitely not a national security concern,” the NUPL said.

Quoting the high tribunal’s decision on EO 464, the lawyers group said “Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.

The NUPL said Defense Secretary Teodoro and eight other generals of the AFP- AFP Chief of Staff Hermogenes Esperon Jr., Army Commander Lt. Gen. Alexander Yano, Air Force Chief Lt. Gen. Horacio Tolentino, Navy Flag Officer in Command Vice Admiral Rogelio Calunsag, Association of Generals and Flag Officers head retired Brig. Gen. Jaime Echeverria, Philippine Military Academy Alumni Association chairman Brig. Gen. Roland Patulagan and PMMA president Gen. Arthur Tabaquero could be legally and constitutionally held liable for violating the SC ruling on EO 464 and Article 150 of the Revised Penal Code.

The NUPL said under Article 150 of the Revised Penal Code, a penalty of arresto mayor shall be imposed upon any person who, having been duly summoned by Congress, its special or standing committees, subcommittees or before any committee chairman or member authorized to summon, refuses, without legal excuse, such summons or being present before such any legislative or constitutional body to answer any legal inquiry or to produce papers, documents or records in his possession.

The NUPL said Secretary Teodoro and 8 other AFP generals cannot invoke either EO 464 or MC 108, the circular President Arroyo had issued after the high court rebuked Palace on EO 464.

“Malacañang did not present any valid claim to exercise the executive privilege in the non-appearance of Secretary Teodoro and the eight generals in last Friday’s Senate hearing on Hello Garci scandal,” the NUPL noted. The lawyers’ group said that in invalidating EO 464, the SC categorically prohibited such unjustified refusal to cooperate as not only violative of the legislative power of Congress, but also of the people’s right to information.

The NUPL also said the refusal of Defense chief and 8 other generals to attend the Senate hearing on the revived Hello Garci wiretapped scandal last Friday further made them liable for violating Article 231 and Article 241 of the Revised Penal Code for openly disobeying the orders of the Constitution and the Supreme Court decisions on EO 464.

Under Article 231 of the Revised Penal Code- Open Disobedience, any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities, shall suffer penalties of arresto mayor in its medium period to prison correcional in its minimum period, temporary special disqualification in its maximum period and a fine.

Under Article 241 of the Revised Penal Code- Usurpation of Judicial Functions, the penalty of arresto mayor in its medium period to prison correcional in its minimum period shall be imposed upon any officer of the executive branch of the government who shall obstruct the execution of any order or decision rendered by the judge with his jurisdiction.

“The Senate must compel Secretary Teodoro and company to attend in the next hearing on Hello Garci scandal. If they refuse, the Senate should cite them in contempt, order their arrest, ready their detention cell inside the Senate and file criminal and other appropriate charges for those who will snub the next hearing of Senate on the wiretapped scandal,” the NUPL added. #

For Reference: Atty. Neri Colmenares, NUPL preparatory committee member

 

 

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