MALACANANG SUFFERS SETBACK AT HANDS OF SUPREME

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 001746 SIPDIS SIPDIS DEPT FOR EAP, EAP/MTS, INR/EAP E.O. 12958: DECL: 04/21/2016 TAGS: PGOV PINS RP SUBJECT: MALACANANG SUFFERS SETBACK AT HANDS OF SUPREME COURT REF: A. MANILA 995 ¶B. MANILA 711 ¶C. 05 MANILA 4934 Classified By: Pol/C Scott Bellard for reasons 1.4(b) and (d) ¶1. (SBU) Summary: The Supreme Court ruled April 20 that key sections of E.O. 464, which required Malacanang concurrence before executive branch members could testify in Congress, were unconstitutional. Malacanang said it would file a motion for reconsideration. The Opposition hailed the ruling as upholding the balance of powers among branches of government and the people's right to know. According to some insiders, Malacanang may also lose two other important cases now before the Court, including the proclamation of the State of National Emergency earlier this year. The April 20 decision by a court packed with Arroyo appointees was unexpected but reinforces the principle of Supreme Court independence. End Summary. -------------- Surprise Ruling -------------- ¶2. (U) The Supreme Court ruled 14-0 on April 20 that key sections of E.O. 464, which required Malacanang concurrence before executive branch members could testify in Congress (ref c),were unconstitutional. (One justice was on leave and did not participate in the ruling.) The 52-page decision reaffirmed the right of Congress to compel officials to appear "in aid of legislation" and found the E.O. violated that right. It further ruled that "executive privilege" only applied to the President; other executive branch officials did not have the right to invoke it. The Court also held that the order had infringed on the separation of powers among the branches by elevating the rights of one branch (the executive) over those of another (the legislature). However, the Court ruled in favor of the President's prerogative to prevent officials from appearing at "Question Hours" -- hearings that "do not relate to specific legislation but are directed merely at Congressional oversight of the implementation of laws." -------------- GRP Reaction -------------- ¶3. (U) Malacanang was clearly caught off-guard by the ruling. One key assistant to President Arroyo had predicted on April 19 that the Palace would win the case. Palace spokesman Ignacio Bunye said the Administration hoped the ruling would not incite Opposition members to "use their powers to harass public officials or to push a particular political agenda." He urged legislators instead to work "in a positive manner," including by passing the 2006 budget (now in the Senate). Presidential Chief of Staff Michael Defensor told the media that Solicitor General Antonio Eduardo Nachura would file a motion of reconsideration, although few observers have expressed confidence that this motion would have much of a chance of success. -------------- Opposition Enthused -------------- ¶4. (C) A gleeful Opposition welcomed the news and congratulated the Supreme Court for asserting its "independence." Senate President Franklin Drilon, who has called for the President's resignation, said he was grateful the Court "was prepared to uphold the Constitution." Drilon was one of 17 senators who had asked the Court to rule on the order, claiming that it had delayed Senate business. Senator Panfilo Lacson called for the resignation of Arroyo advisors who had crafted E.O. 464, while House Minority Leader Francis Escudero hailed the Court's decision as one "in the best interest of our people." According to Lacson aide Lito Banayo, the Court's ruling was "a serious blow to Malacanang, which had been acting as if it was above the law." He predicted that when the Senate came back from recess in mid-May, it would commence a series of hearings into various matters "embarrassing to Malacanang." -------------- More To Come? -------------- MANILA 00001746 002 OF 002 ¶5. (C) One Estrada-era Sandiganbayan justice told Pol/C late April 20 that close contacts in the Supreme Court (now in summer session in Baguio) had confirmed that pending Court decisions regarding challenges to E.O. 1017 (proclaiming the State of National Emergency in February) and the GRP's "Calibrated Pre-emptive Response" (CPR) policy had already gone against Malacanang; designated justices were already crafting the final decisions for release in the next few weeks. Separately, Senate staffer Banayo noted that many justices had already been critical of E.O. 1017 and CPR in oral arguments held earlier this year, and said that he had heard reports that the Court planned to issue rulings that were adverse to Malacanang in both those cases. -------------- Comment -------------- ¶6. (C) The April 20 decision by a court packed with Arroyo appointees (10 of 15 justices, including the new Chief Justice) was unexpected by most pundits but should help to reinforce the principle of Supreme Court independence. In recent years, many observers -- not only in the Opposition -- had accused the Court of operating in overly close coordination with Malacanang. If the Court does overrule Malacanang on E.O. 1017 and the CPR policy, it would be a welcome sign of true separation of powers but also a public relations and political nightmare for the Palace. The Opposition remains on the lookout for weapons to use in an expected new impeachment effort against the President beginning in July; actions committed under unconstitutional Executive Orders might well fit the bill. Visit Embassy Manila's Classified SIPRNET website: http://www.state.sgov.gov/p/eap/manila/index. cfm You can also access this site through the State Department's Classified SIPRNET website: http://www.state.sgov.gov/ Kenney