Chief Justice dissents

(UPDATED) SUPREME Court Chief Justice Reynato Puno disagreed with majority of his colleagues when they voted yesterday to uphold Romulo Neri’s claim of executive privilege over three questions asked of him by senators investigating the scandal-ridden national broadband network (NBN) deal.

Puno wrote the minority’s over a hundred-page dissenting ponencia, which was concurred in by five other magistrates — Justices Antonio Carpio, Conchita Carpio Morales, Adolf Azcuna, and Alicia Austria-Martinez, and Consuelo Ynares-Santiago.

The chief justice argued that the three questions were not covered by executive privilege as it was “self-evident” that such questions were pertinent to the Senate inquiry.

Puno also declared the Senate’s contempt order against Neri as a valid exercise of its constitutional powers.

Read Chief Justice Puno’s dissenting opinion.

In opening his voluminous dissent, no doubt a scholarly dissertation for the ages, Puno made it unequivocally clear that the “end all of executive privilege is to promote public interest and no other.”

As the “tension between disclosure and secrecy in a democracy,” the doctrine of executive privilege, he pointed out, finds its origins in the U.S. legal and political system and literature. He noted though the contrast between the U.S. Constitution, which has little to say about government secrecy or public access, and the 1987 Philippine Constitution, which is replete with provisions on government transparency, accountability and disclosure of information. This, Puno said, was a “reaction to our years under martial rule when the workings of government were veiled in secrecy.”

Puno enumerated such constitutional provisions according importance to information as follows:

• Article III, Section 7 guaranteeing the right of the people to information on matters of public concern;

• Article II (Declaration of State Principles and Policies), Section 24 declaring it a policy of the State to recognize the vital role of communication and information in nation-building;

• Article II, Section 28 mandating the State to adopt and implement a policy of full public disclosure of all its transactions involving public interest;

• Article IX (Accountability of Public Officials), Section 1 declaring that public office is a public trust, which requires of public officers and employees to at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives;

• Article XI (National Economy and Patrimony), Section 21 stating that information on foreign loans obtained or guaranteed by the Government shall be made available to the public.

• Article XVI (General Provisions), Section 10 which provides that the State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

A government’s democratic legitimacy, Puno argued, rests on the “people’s information on government plans and progress on its initiatives, revenue and spending, among others, for that will allow the people to vote, speak, and organize around political causes meaningfully.”

Puno then defended the Senate committees investigating the NBN scandal given the legislature’s “long-established power to inquire into administrative conduct and the exercise of administrative discretion under the acts of the legislature, and to ascertain compliance with legislative intent.”

Further argued Puno: “This power of congressional oversight embraces all activities undertaken by Congress to enhance its understanding of and influence over implementation of legislation it has enacted. Oversight may be undertaken through review or investigation of executive branch action. One device of the legislature to review, influence and direct administration by the executive is legislation and the corollary power of investigation. The standard justification for an investigation is the presumed need for new or remedial legislation; hence, investigations ought to be made in aid of legislation.”

Part of the Senate’s legislative power of investigation, added Puno, is the power of contempt or process to enforce — a power that, though not explicitly mentioned in the Constitution, has long been recognized.

For a valid exercise of the legislative power of investigation and contempt of witness for contumacy, Puno said two requirements must be met: first, the existence of a legislative purpose, i.e., the inquiry must be in aid of legislation, and second, the pertinency of the question propounded.

On both, Puno affirmed the Senate, saying that its legislative investigation satisfies the requirement that the question seeking the withheld information must be pertinent.

“It is self-evident that the three assailed questions are pertinent to the subject matter of the legislative investigation being undertaken by the Senate,” he said.

Moreover, the chief magistrate said that the questions have direct relation not only to the subject of the inquiry, but also to the pending bills thereat.

“The three assailed questions seek information on how and why the NBN-ZTE contract — an international agreement embodying a foreign loan for the undertaking of the NBN Project — was consummated,” said Puno, citing at least three subject matters of the Senate inquiry that are pertinent to the three questions:

1. possible anomalies in the consummation of the NBN-ZTE Contract in relation to the Build-Operate-Transfer Law and other laws (Philippine Senate Resolution No. 127);
2. national security implications of awarding the NBN Project to ZTE, a foreign-owned corporation (P.S. Res. No. 129); and
3. legal and economic justification of the NBN Project (P.S. Res. No. 136).

The three questions, said Puno, are also pertinent to pending legislation in the Senate, namely:

1. the subjection of international agreements involving funds for the procurement of infrastructure projects, goods and consulting services to Philippine procurement laws (Senate Bill No. 1793);
2. the imposition of safeguards in the contracting of loans classified under Official Development Assistance (Senate Bill No. 1794); and
3. the concurrence of the Senate in international and executive agreements (Senate Bill No. 1317).

All three disputed questions, he said, seek information for which there is no effective substitute. Without Neri’s testimony, the Senate committees are “effectively denied of their right to access to any and all kinds of useful information and consequently, their right to intelligently craft and propose laws to remedy what is called ‘dysfunctional procurement system of the government.'” asserted Puno.

“It cannot be successfully disputed that the information sought from (Neri) relative to the NBN Project is essential to the proposed amendments to the Government Procurement Reform Act and Official Development Assistance Act to enable Congress to plug the loopholes in these statutes and prevent financial drain on our Treasury.”

Noting that Neri’s refusal to answer the three questions poses serious impairment of the Senate’s function of crafting specific legislation pertaining to procurement and concurring in executive agreements based on facts and not speculation, the Chief Justice, on the contrary, saw a disclosure not significantly impairing the President’s performance of her functions, especially the duty to execute the laws of the land.

Puno also pointed out that Neri and his counsel, Atty. Antonio Bautista, did not substantiate by specific proofs their general claim of a chilling effect on the President’s performance of her functions when he invoked the presidential communications privilege.

Besides Neri’s failure to justify his claim that his conversations with the President involve diplomatic, military and national security secrets, Puno also argued that though presidential communications are accorded presumptive privilege, the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan.

“The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank),” said Puno. “We also consider the chilling effect which may result from the disclosure of the information sought from petitioner Neri but the chilling effect is diminished by the nature of the information sought, which is narrow, limited as it is to the three assailed questions. We take judicial notice also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation.”

Issuing a strong reminder, Puno pointed out that invoking executive privilege, throughout its history, has never justified the concealment of a wrongdoing.

In several of prominent decisions on the presidential communications privilege by U.S. courts, Puno said it has been reiterated that executive privilege cannot cover up wrongdoing. He cited Nixon v. Sirica, wherein the D.C. Circuit Court of Appeals rejected the contention of President Richard Nixon that executive privilege was absolute and held that, if it were so, “the head of an executive department would have the power on his own say so to cover up all evidence of fraud and corruption when a federal court or grand jury was investigating malfeasance in office, and this is not the law.”

Puno likewise cited Senate Select Committee v. Nixon, wherein the Appellate Court reiterated its pronouncement in Sirica that the “Executive cannot…invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing.”

Despite the courts’ numerous reaffirmations of this time-honored principle, Puno, however, agreed with the ruling of the D.C. Circuit Court of Appeals, in both cases, that “made it clear that this time-honored principle was not the sword that would pierce the Presidential communications privilege; it was instead the showing of a need for information by an institution to enable it to perform its constitutional functions.”

“That a wrongdoing — which the Presidential communications privilege should not shield — has been committed is an allegation to be proved with the required evidence in a proper forum. The Presidential communications privilege can be pierced by a showing of a specific need of the party seeking the Presidential information in order to perform its functions mandated by the Constitution,” he said.

Only after the privilege has been pierced by this demonstrated need, the Chief Justice said, can it be ascertained if the privilege was used to shield a wrongdoing, or if there is no wrongdoing after all.

“We should not put the cart before the horse,” he said.