‘A terrible decision’

IT was a decision certainly most welcome to Malacañang, and in particular, to Romulo Neri, the former director general of the National Economic and Development Authority whose claim of executive privilege the Supreme Court upheld by a vote of 9-6 yesterday.

To senators though, as well as to legal and political experts, and advocates of good governance, transparency and public accountability, the High Court’s ruling is anything but acceptable.

“This is unfortunate,” remarked Senate President Manuel Villar, describing the SC decision as 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 the magistrates said should not be asked, are the same questions that are left hanging on the people’s minds,” claimed Villar.

With the SC decision, senators can no longer ask Neri whether Gloria Macapagal-Arroyo followed up the national broadband network (NBN) project with him; whether he was dictated to prioritize the Chinese firm ZTE Corporation; and whether Arroyo told him to go ahead and approve the project despite being told about the alleged bribe.

“It was a terrible decision,” deplored Senate Minority Floor Leader Aquilino Pimentel Jr. “It allows crime cover-up in the guise of executive privilege. (It’s) unprecedented. It emasculates the Senate’s investigative function,” he said, snidely adding that the Senate should consider folding up as a result.

Senate Majority Leader Francis Pangilinan called the ruling a “legal setback,” saying it was most unfortunate that the majority of the justices leaned more in favor of Neri’s claim of executive privilege than with the quest for the truth about the national broadband network scandal. Pangilinan also maintained that the people deserve to know whether or not the president acted unlawfully after having been informed that the NBN deal, then under negotiations, was tainted with unlawful and illegal acts.

“I don’t see how executive privilege can be allowed under these circumstances,” he asserted.

Though respectfully disagreeing with the SC ruling, Pangilinan said the Senate will not be prevented from getting to the bottom of the truth about the NBN scandal.

“We will file a motion for reconsideration,” assured the independent senator. But in the meantime, Pangilinan said he will move that Neri be subpoenaed so that he can be asked other questions on the alleged involvement of Gloria Macapagal-Arroyo in the NBN transaction.

“If he refuses to speak up without justifiable grounds, I will move that he be cited in contempt of the Senate and detained,” said Pangilinan. “As a co-equal to the Judiciary and the Supreme Court, the Senate will not allow interference in purely legislative matters by other branches of government and we will assert our constitutional status as a co-equal.”

With the way the voting went, eight of 12 Arroyo-appointed justices siding with the majority decision, lawyer Nepomuceno Malaluan said the Supreme Court cannot escape the charge that it may have been a “politically biased court.”

“I think the Supreme Court is tainted by this decision…This is a sad day for checks and balances in the Philippines,” lamented Malaluan, spokesperson of the Access to Information Network (ATIN), an advocacy group seeking the passage of an access to information law to operationalize constitutional guarantees on the people’s right to know.

Malaluan said there was clearly no state secret involved in the three questions. “It’s really bending, twisting even, to be able to sustain the link to a supposed state secret. We know the arguments, the questions, and they are so remotely related to the claim of state secret.”

“The only thing there is here is deliberative process privilege as a species of executive privilege, but this has to be weighed against other interests involved. And clearly, the weighing should have been in favor of disclosure.”

But the problem, he added, is with the ruling’s long-term effect on transparency on government action. “It gives an already powerful president an even greater elbow room, even as the Lower House by its own default has already conceded much to the president, and the Senate tried to stand up, but is faced with this.”

The SC ruling also expands the capacity of the president to deny access to public documents, claimed Malaluan. “Quite broadly, in fact,” pointing out how it’s not even consistent with the standards laid out by the Court in the Ermita case.

And with the majority decision providing no clear guidelines, Malaluan said it’s tantamount to a blanket authority, which would not surprise him if Arroyo will use to the hilt.

Vince Lazatin of the Transparency and Accountability Network expressed much the same view. “The SC decision on Neri’s petition is a big blow to the people’s right to know, our democracy, and transparency. It also exposes the frailty of our institutions. the executive is further ensconced behind the thick walls of its panic room,” he said.

For political analyst Ramon Casiple, the Supreme Court lost out as an institution with its decision to uphold Neri’s claim of executive privilege.

“While the SC may have the legal and constitutional basis to make that decision, the political effect is to downgrade the credibility of the SC itself,” citing the fact that newly appointed Justice Arturo Brion, a former member of Arroyo’s cabinet, concurred with the majority.

“There was really suspicion that his appointment came with a price,” said Casiple. “He could have just abstained. But the fact that he voted and sided with Malacañang’s position speaks of his lack of delicadeza.”

On his blog, human rights lawyer Theodore Te of the Free Legal Assistance Group also criticized what he called Brion’s “surprising lack of becoming modesty” for “voting on a petition where he did not participate and where popular sentiment held that his appointment was precisely to forestall the effects of a (Presbitero) Velasco inhibition.”

Velasco, along with Corona, were asked to inhibit from the SC’s deliberations on the executive privilege invoked by Neri for their perceived partiality. Velasco was alleged to be a “golf buddy” of Neri while Corona’s wife is reported to be an appointee of Arroyo.

Te also saw an “uncharacteristic lack of becoming modesty” in de Castro, who penned the majority decision, as her appointment, he said, was “clearly seen as a reward for convicting Estrada.”

“We thought the Supreme Court is the last institution that’s left undamaged by what Arroyo has done to our institutions,” said Malaluan. “This only confirms that the SC is not the court of last resort.”

University of the Philippines law professor Harry Roque was even more unforgiving in his assessment of the High Court. “This marks the beginning of the end of an independent judiciary. We now have a court with striking similarity to the Marcos Supreme Court that shirked from its obligation to defend the Constitution.”

Roque was referring to the time more than 30 years ago when then President Ferdinand Marcos managed to get the highest court of the land to endorse an anomalous ratification of a new charter he had tailor-made to suit his needs. After Marcos had his own citizens’ assemblies “overwhelmingly ratif(ying)” the 1973 Constitution, he issued a proclamation saying the people have spoken and that their decision must be respected even by the Supreme Court since sovereignty resides in the people.

He also believes that the decision has made the Senate into a “toothless tiger” — a situation that will in turn further undermine the cause of good governance and public accountability.

What the SC decision has done, Casiple said, is to polarize the nation even more. Saying that the people have made up their minds about the truth (in the NBN scandal) already, he thinks what the justices did was to “further burden(ed) the people with the responsibility of exercising sovereign direct democratic action in settling the political crisis.”

Casiple acknowledges though that the political crisis will be a protracted one — extending to months, and even years — given the obstacles at this time, as shown by the failure of power institutions to “enforce the majority people’s will expressed time and again in surveys, street actions, and other fora of direct democracy.”