Posted by: nupl | November 11, 2007

Gen. Abu can’t invoke EO 464—lawyers’ group

September 7, 2007

Press Release

Gen. Abu can’t invoke EO 464—lawyers’ group

The human rights lawyers’ group National Union of Peoples’ Lawyers (NUPL) on Friday said former Armed Forces Chief of Staff Efren Abu cannot invoke the controversial Executive Order 464, stressing that the Supreme Court has unanimously declared the controversial executive order unconstitutional.

The NUPL said Gen. Abu was legally and constitutionally liable for violating the high tribunal’s edict on EO 464. He said the refusal of the ex-AFP chief to attend the Senate hearing on the revived Hello Garci tape scandal constitutes violation of Article 150 of the Revised Penal Code.

The lawyers’ group said in the last year’s legal battle between Malacañang and the Senate on EO 464, the SC has upheld congressional power to summon executive officials in congressional inquiries in the case of 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 Section 21, the appearance is mandatory. While the executive branch is co-equal branch of legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

The SC decision on EO 464 further states that 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 of by the Executive Secretary.

“Malacañang did not present any valid claim to exercise the executive privilege in the non-appearance of Gen. Abu in the Senate hearing on Hello Garci,” 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.

Quoting the SC decision on EO 464, the NUPL says “resort to any means by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of legislature to inquire into the operations of the government, but we shall have given up something for much greater value- our right as people to take part in the government.”

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.

“In the first place, it should be President Gloria Macapagal-Arroyo who should invoke EO 464 since she is the highest official of the executive department. Gen. Abu is not the President of the Republic, and therefore, has no legal power to unilaterally exercise the controversial EO or any other executive privilege on his own to turn down the summon on the Hello Garci hearing ,” NUPL added.

The NUPL further stressed: “And for President Arroyo to execute EO 464 or any other executive privilege parallel or similar to EO 464 must first justify to Senate the exercise of such executive privilege or power. Is the Hello Garci scandal a serious issue concerning national security? Is it a state secret? Is it part of the internal meeting among her and her cabinet members? Is it part of a foreign treaty? The NUPL believes the Hello Garci tape scandal does not fall to any of these categories, and therefore, Malacañang and Gen. Abu cannot invoke EO 464 or any executive privilege.”

The lawyers’ group said the refusal of Gen. Abu to attend the Senate hearing on the revived Hello Garci wiretapped scandal further made him 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. #

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

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