April 10, 2008 · Posted in: i Report Features, In the News

An absolute privilege

FORMER socioeconomic planning secretary Romulo Neri scored a legal victory when the Supreme Court said the Senate could not compel him to answer three questions that it found to be covered by executive privilege. But transparency advocates say the public may end up the loser should that decision become final.

A commentary by lawyer Nepomuceno Malaluan argues that the March 25, 2008 ruling makes the presidential communications privilege practically absolute, thereby denying the public access to information that may have profound impact on governance and legislation, among other things. Analyzing how the majority of the justices arrived at their conclusion, he also says it seems there were some facts presented in the case that were not considered or evaluated, especially those pertaining to the Senate’s need for the answers to help it craft legislation.

Malaluan questions as well the Court’s determination that the questions asked of Neri lean more toward the exercise of the legislative oversight function. He notes, “Unfortunately, while there may be instances when an inquiry is undertaken solely in oversight, more often the oversight character of an inquiry is inextricable from a legislative purpose.”

“It is by being factually informed of the actual workings or administration of existing laws, or of the ways by which wrongdoing such as corruption is committed, that intelligent legislation may be had, whether through the amendment of existing laws or the enactment of new ones,” Malaluan writes. “It is because of the reality of this inter-linkage that the Court itself, in Senate v. Ermita, recognized the validity of facilitating oversight through compulsory process when such oversight is performed in pursuit of legislation.”

We hope the piece will help enlighten readers on the wider implications of the Supreme Court decision on the Neri case. Read on at pcij.org.

7 Responses to An absolute privilege



April 10th, 2008 at 11:15 pm

“Analyzing how the majority of the justices arrived at their conclusion, he also says it seems there were some facts presented in the case that were not considered or evaluated, especially those pertaining to the Senate’s need for the answers to help it craft legislation”.

If one has some Supreme Court practice in the past, you would not be surprised on how the SC would normally skirt issues of vital importance so it can dispose of a case based on its predetermined bias.

If Atty. Malaluan’s exposure is pure academics and he has not ventured going to court, especially before the SC to find out how these “distinguished jurists” reallocates priorities and mangled principle of laws beyond recognition that pushed our legal system back into the stone age, his awakening could be real rude.

By analogy to Atty. Malaluan’s frustration, I can only cite Professor Joaquin Bernas’ lament over the issues of executive privileges:

“There have been instances when the Supreme Court has legitimized official action offensive to human rights and disruptive of constitutionalism. Hence, as we await the decision of the current Supreme Court on the constitutionality of the gag rule in Executive Order 464, and of Proclamation 1017 and the various official actions it occasioned, as well as the uses of BP 880, it might be salutary to review how our Supreme Court has sometimes, to our national regret, played around with sacred constitutional principles.”

Or you might find it hard to believe that the Marcos Supreme Court has affirmed the detention order against then Senator Jose W. Diokno, predicated on the proposition that he might join the 1972 rebellion.

Senator Diokno then told the Supreme Court: “The decision in this case by the this Court, whatever it may be, will be cited in history books many, many years from now. And it will be quoted wherever lovers of freedom ask the question . What did the Court do in that difficult hour?

In my book, I answered the late Senator Diokno’s question this way:

“The nation knows the answer too well . Treason!

“Thus grievous treason and subversion committed against the motherland was perpetrated not by the murderous thugs and misguided elements of our society, but by the very people in the corridors of power, who paradoxically, were sworn to uphold the law and be the zealot guardians of its citadel.

“The termites of our society were having a field day”.

So let us stop kidding ourselves gentlemen. The Supreme Court is the last institution you must go if you were looking for honorable and distinguished gentlemen.

Neither should you go to Congress or Malacanang either. bwahahahahhaah!!!

Oh boy, we are totally screwed!!!



April 11th, 2008 at 5:14 pm

I’m not a lawyer But I can’t see how it’s possible that a President not have any protection from outside forces.
If there was no Executive Previlage. It will be like having a President leaving in a glass Palace w/ microphones all over.
At anytime anybody can come forward to demand what is it the President is saying, thinking or doing.
The Senate insist that Executive Previlage is being used to hide a crime.
Is it not basic Law & Justice for the accuser to prove his allegations?
If there was no such Constitutional guarantee as Executive Previlage then what real power can the Executive ever have.
It will only show that the real power of three branches of goverment who are supposed to be co-equals in reality it’s the legislative who has the power.
Another point to the issue is about what the present decadent composition of the senate is.
It is very obviosly a very “hostile” senate towards the Executive.
The same decadent senate has been holding reckless marathon hearings but after countless hours they really have nothing nothing nothing!!!!!!
Therefore what basis do they have for wanting to break down the door of Executive previlage?



April 11th, 2008 at 8:48 pm


Executive communications as a means of shielding private communications of the President is very ideal and must be protected from very intrusive inquiry even from Congress hiding under the masquerade of “in aid of legislation”.

I agree with the result of the Supreme Court decision in the Neri vs. Congress case, but I do not agree with with the manner by which the Supreme Court would dispose of a case, which according to Atty. Malauan did not squarely resolve the issue of right of “legislative inquiry”. For me, it was misplaced to express surprise the way the SC would skirt issues on cases before it. The SC is noted for this behavior.

My position is that if the SC is unable to answer all the issues rightfully raised in the pleadings, it would be better off just to wash its hand by dismissing the case for reason of “prudential limitation” rather than trying to ponticate on issues and keep mum on others which would only heighten our perception that like the two other branches of government, it is not also immune from graft.

The previous post was in total agreement with observation of Atty. Malaluan that the SC, cannot be trusted – when issues of transcedental importance confront the nation. But this does not mean that I favor Congress over GMA or SC over GMA.

I would choose the executive under GMA than the SC/Congress because GMA has shown some sensitivity to public opinion when she had scrapped the ZTE and ODA projects which according to media are graft-laden.

The two other branches, are noted to be occcupied by “tulisanes” and “hoodlums in robe”.



April 11th, 2008 at 8:50 pm

I mean executive privilege, as a mean x x x


tongue in, anew

April 16th, 2008 at 12:20 am

Aw c’mon, whatever happened to transparency and accountability? We are stockholders of this company called Phils., Inc., and we have a right to know what our nominated CEO is doing with our capital.

If she’s cheating us with our money, no company rule can protect her from our inquiry. Either she resigns or we fire her.



April 16th, 2008 at 2:55 am

Accountability and executive privilege are two different things. Everyone is for public officials to account for their official actions.

Executive privilege is the right of the President to be shielded from obstrusive as well as intrusive inquiry from Congress masquerading its quest under the broad principle of “in aid of legislation”.

If the President wanted to deprive her opponents in Congress weapons to escalate their irresponsible “sound bites”, she can invoke “executive privilege”. It has nothing to do at all with “accountability”.

Accountability is demandable by the people from anyone who holds public office, but it is a total misnomer to label the current congressional inquiry on botched ZTE as a demand by the people for the President to account for her official actions.

The reason why despite claim of Congress and the media that GMA is the biggest brigand and thief in the government, these GMA bashers were appalled to find that the people’s “backlash” they wish to find was simply not there and yet they have the temerity to claim that their discordant sound bites, is the collective voice of the people.

Ob boy, we are totally screwed!!!!



April 16th, 2008 at 4:59 am


The alleged money that flows from the ZTE transaction did not come from the treasury of the government but from the pocket of ZTE officials or its patrons. So our elected “CEO’s in Phil. Inc., did not dip their fingers into our pocket, and the ZTE deal is totally scrapped, dead, unless the new government after GMA would wish to resurrect it.

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