According to news reports, it bars key government officials, including those from the military and the police, from appearing in any Congressional inquiry without her consent.
This EO can be challenged on two grounds:
1. The Constitution (Section 22, Article VI) is quite clear that this prior consent only applies to heads of departments (Department Secretaries) only. It states:
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 of the Senate or the Speaker of the House of Representatives at least three days before their 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.
The above-quoted provision clearly mentions heads of departments only. This is because of inter-branch courtesy, as a department secretary is the alter ego of the President.
By no stretch of the imagination can this restriction be expanded to cover those lower than them. Take note that even the AFP chief of staff and the PNP director-general are not department secretaries (as they still are under the secretaries of defense and interior and local government, respectively), which leads me to the second ground.
2. Putting restrictions on who shall appear before congressional inquiries is an afront to congress’ plenary power to legislate. Part and parcel of this power is the likewise plenary power conduct investigations in aid of legislation. And part of this power to conduct investigations is the compulsory processes to subpoena anyone, except those with constitutional qualifications.
How can a mere executive order curtail such constitutional power?
If this goes on, the Senate may just ignore this order and subpoena (or even arrest) those they want to appear. Then the poor government official(s) will be caught between an irresistible force and an immovable object. This will be a constitutional crisis in the making (or of the administration’s undoing, if we are to be technical about it).
Of course, I have to see the actual executive order (it is not available online as of posting) to see how they have squirmed around the grounds I stated above.
So let’s just see. I will blog about it again when I see the order…