April 16, 2008 · Posted in: Civil Society, Congress Watch, Governance, In the News, The Judiciary
Right to information and government’s ‘hangover of secrecy’
THE current pattern of concealments among public officials has been a clear sign of the Arroyo administration’s “institutional turn to secrecy,” according to transparency, accountability, and good legislation advocates.
Access to Information Network (ATIN) co-convenor Atty. Nepomuceno Malaluan said that former socioeconomic planning secretary Romulo Neri’s invocation of executive privilege, among many other instances of non-disclosure of information, characterizes a government experiencing “a hangover of secrecy” from the regime of the late dictator Ferdinand Marcos.
Neri had invoked executive privilege at the Senate inquiry on the controversial national broadband network (NBN) deal when he refused to answer whether the President (Gloria Macapagal-Arroyo) followed up on the (NBN) project, if the President dictated him to prioritize the Chinese firm ZTE Corporation, and whether the President told him to go ahead and approve the project after being told of the alleged bribery.
The Court ruled that these questions concern diplomatic matters, thus covered by executive privilege, and that the Senate committed grave abuse of discretion when it issued the contempt order and arrest warrant against the Commission on Higher Education chair.
The Senate, in its motion for reconsideration, contested the Court’s ruling saying that “the majority opinion established a ‘dangerous and crippling’ precedent,” that does not only prevent them from asking Neri the three questions but has “far-reaching emasculating results on its future legislative inquiries.”
Read the Senate’s motion for reconsideration.
The decision, once final, according to the Senate, will cause the lingering perception that the High Court is an “Arroyo Supreme Court,” where majority of the justices are swayed by the various “propaganda for the president.”
Recently, the high tribunal ordered Neri and the Office of the Solicitor General to comment on the Senate’s appeal, and the Senate to reply to the comment, all within 10 days.
Malaluan said this gives a glimmer of hope to transparency and accountability advocates because it is an opportunity for the court to revisit the issues raised by the Senate.
“I believe the Senate gave a well-reasoned argument in their appeal,” he said. “If the Justices were to deny the MR (motion for reconsideration), then they would have denied it outright yesterday.”
The Court’s resolution was released in due course, the lawyer said, with respect to the Senate as co-equal branch of government.
If in case the Supreme Court does not reconsider its ruling, former University of the Philippines College of Law dean Pacifico Agabin said that it should then be read as a “narrow decision tailored only to the three questions.”
Agabin, who is also the legal counsel of the Senate in the Neri case, said the decision would not bar the Senate on other questions in aid of legislation.
Lawyer Carlos Medina, however, maintained that the decision severely limits the Senate’s power of legislative inquiry and its ability to investigate government anomalies in aid of legislation.
The executive director of the Ateneo Human Rights Center also argued that the decision makes it easy for the President to invoke executive privilege since what is required is only that an allegation be made whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.
“This in effect will enable the use of executive privilege to hide misconduct or crime,” he said.
Should Neri (and other officials) appear, the Senate can ask him questions other than the three questions. But Neri may again invoke executive privilege on other questions, which could result in another case before the Supreme Court, and the cycle may be repeated again and again.
“Such a situation,” Medina pointed out, “particularly where there appears to be a pattern of concealment in government activities, will ultimately be harmful to public interest.”
Malaluan further noted that the public is held in suspension because the Senate inquiry is banking on being able to ask questions that refer to Neri’s conversations with the President. “It’s taking long but hopefully it will be resolved soon, in favor of the public’s right to know.”
Access denied
Meanwhile, Vincent Lazatin, executive director of the Transparency and Accountability Network (TAN) , said that the current posture of the Supreme Court shows that access to information has not only become limited but political.
Lazatin cited an experience of a journalist requesting for a map of the Spratlys Island, which was denied because the government official claimed that the document requested involves a “hot issue.”
Another example is the National Economic and Development Authority (NEDA), which last year initially granted PCIJ’s various requests for data regarding projects funded by official development assistance. But after Executive Secretary Eduardo Ermita issued a memorandum order last September 28 restricting the release of specific NBN documents to the Senate Blue Ribbon Committee, as well as to media agencies, NEDA stopped processing requests for information connected to the project.
Malaluan noted that the “default mode” of the government with regards to public information must always be public disclosure.
Need for legislation
Denial of access to information, however, has remained widespread despite the constitutional guarantee and the judicial affirmation of the right.
“Legislation is needed to put in place a simple, speedy and effective means of enforcing the right to information,” said Malaluan. ATIN has thus proposed the passage of the “Freedom of Information Act of 2007,” a law that will help mend the gaps in access to information.
On the practical side, legislation can provide uniform condition and procedures in obtaining access to official information. While on the substantive side, it can provide a clear penalty for the unlawful denial of the right.
Legislation can also define further the scope of the guarantee. Currently, there are no specific laws prescribing the exact limitations within which the right to information may be exercised.
“Legislation can provide with greater clarity the boundaries of the right by defining its coverage and prescribing the reasonable standards for its limitation,” added Malaluan.
Aside from the bill, which is currently set for plenary debates in Congress, TAN and ATIN, along with the Lawyers’ League for Liberty (Libertas) and the Alternative Law Groups (ALG), are planning to lead a more aggressive campaign on the right to information, addressing issues from the national to barangay levels and aiming to disclose both “big and small” secrets.
They also plan to build a database that will include cases on right to information and how these were decided by the Supreme Court.
9 Responses to Right to information and government’s ‘hangover of secrecy’
jcc
April 16th, 2008 at 11:47 pm
The post says in part: “The decision, once final, according to the Senate, will cause the lingering perception that the High Court is an “Arroyo Supreme Court,” where majority of the justices are swayed by the various “propaganda for the president.”
The Marcos Supreme Court of the 70’s and 80’s had metamorphosed into a GMA Supreme Court today. There is nothing new about it. Despite its claim of independence and probity and as separate branch of government entrenched to fortify the concept of “checks and balance”, the Supreme Court will always be preoccupied with the “checks” in its commercial term not in political term. Just hope that they deposit checks forthright before they become stale.
But don’t be a sore loser. You have agreed to be bound by the Court’s decision when you submit to its jurisdiction. You should have asked the Court to refrain from entertaining jurisdiction because whatever pronouncement it may have on the issue would only be tainted with doubts and uncertainty and it will be perceived as an assault to fundamental right to free expression if it favors the claim for executive privilege and would assault the independence of the executive if it would allow inquiry into the “executive communications”. It is a damned if you do and damned if you don’t proposition.
We always love to argue our case before the SC knowing that like ourselves, the SC cannot be trusted with a deep sense patriotism and loyalty to flag and country.
Oh boy, we are totally screwed!!!
Ambuot Saimo
April 17th, 2008 at 3:53 am
Although I already promised to myself not to post anymore in this blog but in the light of the current important events I can’t resist the temptation to participate in the debates of these important issues even for the last time (I hope).
In the Neri case:
If you take a look at the Supreme Court’s majority decision, you will find out that it was not fully researched, not well written and most of the arguments were “cut & paste” from the Petitioner’s (Neri) brief. The public expected but failed to find solomonic wisdom in arriving at such a decision inasmuch as the “majority justices” are supposed to be products of the much fabled and over-exagerated topnotch law schools. On the contrary, the “dissenting opinion” by a Chief Justice who is “merely a graduate of FEU” (as per Merriam) is well researched, scholarly and well written that you will enjoy reading even if it’s more than 100 pages.
But I think in both, (majority & dissenting) it failed to consider and discuss the application of the “opening of the door” doctrine in waiver of a privilege.
When Neri told the Senate panel that he “informed” the President that he was offered PhP200 million in bribe for approval of the project it essentially opened the door and the public (through the Senate)has the right to know what’s inside that door by the follow-up three questions and find out what was the president’s reaction or comments after she learned of the enormous bribe especially in the light that the billions pesos-project scheme suddenly changed from original (build operate & transfer (BOT) which the government will not spend anything and means nobody can get “commission” to LOAN which the government will pay with interest and open to lot of “commissioners”. FREE and WITH PAY is a big difference kaya hindi dapat hayaan bitin ang publiko.
But irrespective of the outcome of the MR, the Senate should just treat the decision as only refering to the 3 questions and should not affect questions which may arise later in the future and this experience should also teach a lesson for the Senate to exercise their co-equal power as enshrined in the Constitution most especially at this time when many percieve the present supreme court as Gloria’s Supreme Court.
Napakasuwerti talaga itong pekeng presidenteng ‘to. Consider these: Her opponent in the contested election died; the most vocal and critic of her is now restricted due to colon cancer; she “owned” the majority of congressmen a.k.a. “capones or yes ma’am), the COMELEC and the only sitting president to appoint almost all of the members of the Supreme Court. Aba, eh, Senate na lang at siya na ang may-ari ng buong Pilipinas. As aptly said, “balance” is dead in Pinas. All remained are “CHECKS” payable to the order of rah, rah, boys, cheerleaders and whoever will kiss the a– of GLORIA. Is this governance and do the people cannot do anything about it?????????????@@##$%&%^*
Now, the question is: assuming the Supreme Court affirms the MR, is there any other remedial action avaialble to compel Neri to answer the 3 questions? If there is, what is the appropriate action, who has the standing and in what forum? Is it before God, before Satan or in the conscience of man?
jcc
April 17th, 2008 at 9:55 pm
Welcome back my friend, Ambout.
In the land of intellectual pygmies, you cannot find King Solomon.
I wrote in my book:
“ The government cannot recruit the best lawyers because the best ones are already recruited by the big law firms whose compensation packages are commensurate to their potentials. Others were recruited by multinationals. The best lawyers felt that their capacity to earn is circumscribed by the pay the government positions had to offer and therefore would rather go into a private practice or become in-house counsel for big companies for the big money.
Some of the best lawyers saw the perks in government positions and took the job and become corrupt. One cannot see the likes of the late Senator Jose W. Diokno, Senator Lorenzo Tanada, Senator Jovito Salonga, my classmates Alex Poblador and Cosme Rosell, or the younger lawyer Arno Sanidad, or for that matter, Rene Saguisag waiting in line for Regional Trial Court job.
The country sometimes was able to recruit the best legal minds that were also honest for higher positions because these lawyers saw the prestige of the positions and have the desire to be of service to the country. But most of the times, the executive department recruited judges out of patronage and the Supreme Court which filtered these aspirants was not insulated from the same closed-door horse-trading, backslapping and patronage. Thus, the country ended up staffing most of its judicial positions and positions in the department of justice with legal rejects and intellectual pygmies. This lopsided ratio of legal pygmies and giants in the government defines the quality of justice the country dispenses. If you account for the fact that these rejects are also corrupt, the problem is exponentially magnified.
To quote novelist James Baldwin: “It is certain, in any case, that ignorance, allied with power is the most ferocious enemy justice can have.”
It was only when the county was younger and our people were exuding great sense of patriotism, that the best legal minds would like to serve the country by being in the judiciary. Thus we saw in those times the calibre of Justices Cayetano Arellano, Jose Abad Santos, Manuel Moran and Cesar Bengzon.”
nbernabe
April 20th, 2008 at 10:51 pm
Decades passed and the Supreme Court has earned the respect of peole and other quarters including both the administration block and the oppposition respectively. I just do not but some other peoples claim that the supreme court has lost its credibility.
I’m not even surprise that these people would make a big issue out of this verdict. Considering the political personalities who are so concerned of having Neri talk about the NBN ZTE deal. The decision doesn’t please them in any way and have already perceived it as being biase and yet they have been claiming that they respect the the decision while giving statement to media lambasting the SC for this recent ruling. What types of people are this. This type of people who can only be please only if they like the word you are to say.
People who are noisy about their opinion but lacking the objectivity to accept valid reasons. Just because the SC did not rule in their favor now they are criticizing the most respected institution in the country. An institution that remained apolitical and impartial full of objectivity and wishdom unlike some politicians who got nothing to do but to maliciously impute someone’s credibility and draw insinuations.
It is wrong to impute the SC as an institution and it is sad that some people have gone very low in their quest for personal ambition and hidden agenda trying to stunt-up their image at the expense of the SC as an institution.
jcc
April 21st, 2008 at 12:47 am
“Just because the SC did not rule in their favor now they are criticizing the most respected institution in the country. An institution that remained apolitical and impartial full of objectivity and wishdom unlike some politicians who got nothing to do but to maliciously impute someone’s credibility and draw insinuations.”
You were right in the part when you said that if one does not agree with the SC, it is wrong to critize it maliciously.
But you may not have sufficient data if you say that the SC is the most apolitical and respected institution of the country unless of course you also believed in the survey posted by the PCIJ that among the three branches of government, the SC has retained its level of respectability.
Some other bloggers consider the SC no different from the two other branches of government. All were occupied by less than honorable people.
Their decisions/actions, like the actions of the executive and the legislative branches must be subjected to public scrutiny too.
If you consider that a Chief Justice of the SC was almost impeached for judicial fund diversion had he not clinged to the doctrainal coattails of “twice impeachment attempt” bar principle, such flair for “skirting” the issue can easily shatter the level of respectability you wish other people to see of the SC or its members.
Please take it from the word of a Justice Supreme Court himself which I have quoted in my book:
In 1997, I was driving home after court trial one morning when I heard Ms. Korina Sanchez and then retiring Associate Supreme Court Justice Teodoro Padilla over ABS-CBN radio program. Asked about the index of corruption in the judiciary from level 1 to 10, Justice Padilla said level 7.
Tumultuous uproar was heard from the judiciary after that interview and Justice Padilla had tried to back track from his assessment of the corruption in the judiciary. At another time, I heard Ms. Sanchez again with the good Justice and this time he said that when he had given the level of corruption in the judiciary, he was referring to the lower courts
only. I told myself, he was right because the corruption in the Supreme Court was at level 10 already!
nosi balasi
April 22nd, 2008 at 2:10 pm
in 1997, t’was already at Level 10….it’s 2008 na dapat upgraded na ang Level of Corruption sa Judiciary.
nbernabe
April 27th, 2008 at 10:09 pm
This is an excerpt from Justice Artemio V. Panganiban’s article in inquirer. Posted : 04/05/2008
The claim of the Senate has been denied due to:
The Senate did not follow the procedures outlined in “Senate vs Ermita,” like the need to indicate in the invitation or subpoena the proposed legislation that prompted the inquiry and the general questions to be asked; (3) only a minority of the members of the committees were present when the order was deliberated upon and the absentees were just asked to sign the order; (4) the “Senate Rules of Procedure Governing Inquiries in Aid of Legislation” were not duly-published; and (5) the Committees “did not first pass upon the claim of executive privilege and inform petitioner of their ruling.”
As for the Senate arguing that they are a continuing body…
To begin with, Sec. 21 of Article VI of the Constitution provides that a Senate committee “may conduct inquiries in aid of legislation in accordance with duly published rules of procedure.” The Constitution did not say how the rules should be published. But the Senate rules themselves state that they “shall take effect seven days after publication in two newspapers of general circulation.” Thus, their publication in the Senate website and their availability in pamphlet form are not sufficient compliance with the rules.
In contrast, under the 1987 Constitution, the term of 12 of the 24 senators expired every three years “leaving less than a majority to continue into the next Congress.” Thus, the present Senate cannot be deemed a continuing body. Ergo, the rules must be republished after the expiration of the term of 12 senators.
In 2006, the rules were published in the Inquirer and another daily, for the 13th Congress. But they have not been republished for the current 14th Congress that began in 2007. The Senate however argues that there is no need to republish, because “Nazareno vs Arnault” (July 18, 1950) has held that, unlike the House of Representatives, the Senate was a continuing body.
Justice Carpio, however, cogently observes that “Nazareno” was decided under the 1935 Constitution when only eight of the 24 senators were elected every two years such that 16 senators constituting two-thirds of the Senate “always continued into the next Congress.” Since only a majority or 13 of the 24 members were needed to constitute a quorum and do business, the Senate was deemed a continuing body.
The foregoing distinction may appear hair-splitting but it is essential to due process and the rule of law. The Senate Rules of Procedure put at risk the liberty of witnesses and resource persons during investigations. Hence, the Constitution and the rules must be strictly construed in favor of the people and against the Senate.
jcc
April 28th, 2008 at 2:14 am
SAME SIDE OF THE SAME COIN
One of my favorite professors in college was Prof. Perfecto Fernandez and not Justice Vicente Mendoza when it comes to constitutional law issues. And the irony is, Prof. Fernandez is an authority on labor laws while Prof Mendoza is an authority on constitutional law. Prof. Fernandez is physically impaired, but his legal mind is not. He goes to college with a cane and he limps. Professor Mendoza loves to talk Greeks in class, while Prof Fernandez speaks constitutional reality with a great sense of humor.
He said that hard cases have the tendency to unmake the Supreme Court. He made this statement in relation with the case of Executive Secretary vs. Javellana, the infamous ratification cases in 1972 under Mr. Marcos.
On hard cases, he said, the SC would like to play like a discordant symphony playing a cacophony of tunes. One Justice would partially dissent but nonetheless would agree with the result arrived at by the majority; some would dissent on every point raised by the majority while others would simply affirmed the majority opinion and each justice would write his thesis displaying his collective wisdom or lack of it for future scholars to ponder and think about.
In every decision, a jurist can cite flavorful authorities in support of the issue for or against it and all positions have respectable and tenable arguments and sometimes one wonder if the majority opinion was arrived at after serious and conscientious deliberations in a session hall or in chamber by our distinguished jurists, or simply arrived at in a banter over a dice table.
Prof. Fernandez said that at times it is discernible enough that the SC had already made its mind on a particular issue and disposing of it is only a matter of looking for the authorities that support this position rather than closely examining these “positions” or what scholars would love to call “jurisprudence” if they still hold meaning and wisdom in the light of contemporary events.
Sometimes, cases you read would give you an idea that as if the SC have agreed to disagree even before being confronted with the issue they are disagreeing on and the assignment of who will write the majority and minority opinion is a matter of pinpointing which jurist has the profound bias in favor of the majority position and which one has the distaste for it to write the dissenting opinion.
But believe me gentlemen, all of them belong to the same side of the coin.
Those were not the exact words of Prof. Fernandez, it was my paraphrasing of his legal thought.
jcc
April 28th, 2008 at 7:55 pm
error: “would simply affirm” not affirmed.