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Wednesday, March 26, 2008
SC rules Neri can invoke executive privilege
MANILA -- The Supreme Court (SC) on Tuesday ruled that Commission on Higher Education (Ched) chairman Romulo Neri can invoke executive privilege and that he cannot be compelled to answer three questions, which the Senate feels crucial in its inquiry on the controversial broadband project.
Voting 9-6, the tribunal granted the petition of Neri seeking to enjoin the senators from compelling him to testify on confidential matters, saying doing so would be detrimental to the country's diplomatic relations with China.
Arroyo Watch: Sun.Star blog on President Arroyo
The Senate, said SC spokesman Jose Midas Marquez, cannot also cite Neri or any person appearing before it in contempt until it passes its rules.
He said the ban not only covers Neri but, in effect, also covers other witnesses appearing before the Senate.
"This means that Neri can't be cited for contempt, nor can he be arrested unless sufficient rules are published. The Court is not saying that the Senate is without powers to hold hearing provided that the questions are not covered by executive privilege," he said.
However, Marquez said it is up to Neri if he still wants to voluntarily disclose that information to the public or during an executive session.
Related links
Supreme Court's decision on Ched Secretary Romulo Neri petition invoking executive privilege
How Supreme Court Justices voted
Dissenting opinion of Supreme Court Chief Justice Renato C. Puno
Dissenting opinion of Supreme Court Justice Conchita Carpio Morales
Separate opinion of Supreme Court Justice Consuelo Ynares-Santiago
Dissenting and concurring opinion of Supreme Court Justice Antonio Carpio
Concurring opinion of Supreme Court Justice Renato Corona
Separate concurring opinion of Supreme Court Justice Antonio Eduardo Nachura
Separate concurring opinion of Supreme Court Justice Dante Tinga
Diplomatic matters
Penned by Associate Justice Teresita Leonardo-de Castro, the SC ruling gave weight on the argument of Neri's lawyer Antonio Bautista that the Ched chairman's conversations with President Gloria Macapagal-Arroyo "dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the country."
The decision is also anchored on technicalities ensuing from the failure of the Senate to publish its rules at the opening of the 14th Congress.
Pursuant to Section 21 of Article VI of the Constitution, the Senate or the House of Representatives or any of its committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure.
Aside from de Castro, the other justices who believed that the three questions were part of privileged communications are Associate Justices Leonardo Quisumbing, Renato Corona, Dante Tinga, Minita Chico-Nazario, Presbiterio Velasco, Antonio Eduardo Nachura, Ruben Reyes, and Arturo Brion.
The three questions are: whether the President followed up the national broadband network (NBN)-ZTE project with Neri; whether Neri was dictated to prioritize the NBN-ZTE project; and, whether the President told him to go ahead and approve the project after being told about the alleged bribe.
Brion, who was appointed to the high court only last week, was not with the SC when it held oral arguments on Neri's case last March 4. He also wrote a separate opinion explaining his vote to concur with the majority.
Dissenters were Chief Justice Reynato Puno and Associate Justices Consuelo Ynares-Santiago, Ma. Alicia Austria-Martinez, Conchita Carpio-Morales, Adolfo Azcuna, and Antonio Carpio.
Carpio, however, joined the majority in ruling that the Senate gravely abused its discretion in citing Neri in contempt and in issuing the warrant for his arrest.
SC spokesman Marquez meanwhile said the ruling does not preclude the Senate from proceeding with its legislative inquiry on the NBN-ZTE deal, but the senators may no longer ask the three questions, which Neri claimed are covered by executive privilege.
Under the Constitution, executive privilege is a recognized right of the President to withhold from Congress, the courts, and the public any information regarded as vital to the national interest. The information could include conversations and correspondence between the President and her officials pertaining to the military, diplomatic, and other national security issues.
Dissenting opinion
Puno, in his dissenting opinion, said the respondent Senate committees on accountability of public officers and investigations (blue ribbon), national defense and security, and trade and commerce did not abuse their discretion in issuing the January 30, 2008 order of arrest of Neri.
Puno said based on the composition of respondent committees in the determination of majority vote, majority requirement for each of the respondent committees was satisfied, thus the substantive and procedural requirements for issuing an order of arrest have been met.
He said the Senate committees have good reasons in citing Neri for contempt for failing to appear in the November 20, 2007 hearing, and that there is no basis for either petitioner or the executive secretary to assume that petitioner's further testimony will be limited only to the three disputed questions.
"When there is abuse of power by any of the branches, there is no victor, for a distortion of power works to the detriment of the whole government, which is constitutionally designed to function as an organic whole," said Puno.
Puno said even assuming that petitioner can properly invoke the privilege covering national security and military affairs, still, "the records will show that (Neri) failed to provide the court knowledge of the circumstances with which the court can determine whether there is reasonable danger that his answers to the three disputed questions would indeed divulge secrets that would compromise our national security."
Puno also made comparisons of the case with that of former US President Richard Nixon in invoking executive privilege in refusing to turn over certain tapes and documents relating to the Watergate scandal.
He said the presidential communications privilege couldn't be used to personally benefit the Office of the President.
'Pleased'
Neri said he is "pleased" that the SC ruled in his favor to keep private his conversations with President Arroyo on the botched US$329 million NBN deal with China's ZTE Corp.
"I am happy with the SC decision. My lawyers seem to be happy with it," he said.
He did not elaborate further, adding that he will let his lawyers see first the full text of the SC ruling.
Like the higher education chief, Malacañang is also happy with the SC decision.
"We hope that, looking forward, the Senate and the executive branch can work out mutually acceptable rules on appearances in Senate inquiries in aid of legislation, which will guarantee the rights of resource persons and parties affected by congressional hearings, as stipulated by the Constitution," said Press Secretary Ignacio Bunye.
Deputy presidential spokesman Anthony Golez said 9-6 decision of the SC favoring the invocation of executive privilege shows respect for the independence of each branch of government.
Golez said it also upheld the Constitution's provisions on executive privilege and proved that the decision of the executive branch to invoke such policy is correct and legal.
"And we would like to take this opportunity to express our hopes for the legislators to come up with a guideline on how they should be treating resource persons in their Senate inquiries particularly the Senate in aid of legislation," he said.
'Saddened'
Senate President Manuel "Manny" Villar Jr. said while he respects the SC decision, he is "saddened" by the decision that prevents the truth from coming out in the anomalous NBN deal.
"This is unfortunate. The SC decision on the Neri case is a historical blot in the nation's cherished tenets of democracy, truth and justice. We respect the decision of the SC but it has to be said that those three questions that magistrates said should not be asked, are the same questions that are left hanging on the people's minds," Villar said.
For Senator Francis Pangilinan, he remains firm in seeking the truth behind the NBN-ZTE mess.
"We respectfully disagree with the SC ruling and we will file a motion for reconsideration. In the meantime, I will move that Neri be subpoenaed and that I intend to ask him other questions on the alleged involvement of President Arroyo in the NBN-ZTE transaction. If he refuses to speak up without justifiable grounds I will move that he be cited in contempt of the Senate and detained. We will not allow this legal setback to prevent us from seeking the truth," said Pangilinan. (Sunnex)For more Philippine news, visit Sun.Star Pangasinan. (March 26, 2008 issue)
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