March 5, 2008 · Posted in: Governance, In the News, The Judiciary
SC proposes compromise as ‘executive privilege’ saga continues
IN an apparent showdown between the executive and legislative branches of government on the issue of executive privilege, the Supreme Court mediated in yesterday’s oral arguments with a proposal that could make former National Economic and Development Authority (NEDA) chief Romulo Neri testify again at the Senate investigation on the national broadband network (NBN) deal.
![Yesterday's oral arguments on the Neri petition [photo courtesy of Supreme Court]](http://www.pcij.org/blog/wp-content/uploads/2008/03/supreme-court.jpg "Yesterday's oral arguments on the Neri petition [photo courtesy of Supreme Court]")
Halfway through the argument that lasted about nine hours, the high court through Chief Justice Reynato Puno and Justice Antonio Carpio recommended that the Senate withdraw the three key questions to which Neri invoked executive privilege. The questions were: One, whether the President (Gloria Macapagal-Arroyo) followed up on the (NBN) project? Two, if the President dictated Neri to prioritize ZTE Corporation? And, three, whether the President told Neri to go ahead and approve the project after being told about the alleged bribery?
Puno explained that since Neri only had objections on these questions, he could testify back at the Senate and answer other queries. The Senate’s Committee on Accountability of Public Officers and Investigations (Blue Ribbon) chairman, Senator Alan Peter Cayetano, however, argued that Neri might invoke executive privilege again or exhaust all other legal excuses to avoid disclosing information.
Puno advised Cayetano that should Neri invoke executive privilege again, the Court would have to decide whether such claims are valid. Neri’s counsel, headed by Atty. Antonio Bautista, concurred with the compromise agreement but the Senate had to convene all its members first before finalizing its decision.
Some legal experts, however, took exception at the “brokering” initiated by the Supreme Court. “The SC should not be in the business of brokering, of compromising on matters of public interest,” said a noted legal luminary who requested anonymity. While he acknowledged the use of mediation and conciliation, he said these have no place in cases involving graft and corruption, matters that are imbued with public interest, adding that the SC proposal seems to be the “judicial equivalent of ‘moderat(ing) your greed.”
Unwarranted compromise
“Yesterday was a sad day for the Senate, the Supreme Court, and for democracy,” said University of the Philippines law professor Harry Roque Jr.
Roque was disappointed that the high court “abdicated, surrendered to compromise.” It was a failure of the Court’s judicial power to determine conflict and a failure to uphold the Constitution, according to the lawyer who believes that the three prohibited questions are all matters of public interest.
“The balance of power is precarious,” Roque adds, while stressing that now, “pro-administration Court Justices are asserting themselves.”
Senator Aquilino Pimentel said such a compromise will only perpetuate the issue, seeing a situation where Neri would just continue “to frivolously invoke executive privilege.” The Mindanao senator called on the Supreme Court to decisively interpret the questioned constitutional articles.
Arguments
At the court proceeding over the said petition, Neri, who was not present, had his lawyer Bautista grilled by the Supreme Court’s fifteen magistrates on assertions that said Neri-Arroyo conversations “dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines.”
Bautista supported the claim, saying that the military had plans to make use of the project in carrying out its operations and that China, one the country’s biggest loan-providers, is “not happy” with the cancellation of the NBN project and the controversies hounding it.
However, when Puno asked whether the Department of National Defense — for national security — and the Department of Foreign Affairs — for diplomatic concerns — were referred to in the course of planning the project, Bautista said no.
“Yet you are invoking executive privilege on national security and economic impact?” the Chief Justice told Bautista.
Puno also delved into “how the Office of the President will be seriously hampered in the performance of its duties if Neri would answer the three questions.”
Bautista said that the President will be “open to scrutiny” and that there would be a “chilling effect” because the President might no longer talk in confidence to her subordinates if they would be compelled to tell the Senate what she tells them.
The lawyer also reasoned that it would imply that the President has a “personal undue interest” in the project.
For his part, Justice Carpio said that the petitioner’s claims were too general, arguing that he saw no specific circumstances why executive privilege should be honored.
Bautista countered and said that specifics would mean disclosing what were dealt with in the Neri-Arroyo conversations.
Carpio also said that the Filipino taxpayers’ interests must always be prioritized more than any other interest concerning other countries. “Should we protect diplomatic relations as against public interest?” he asked.
Puno further argued that China’s “ruffled feelings,” referring to Bautista’s statement, do not necessarily entail a negative impact on our diplomatic ties with them.
At one point, Bautista compared the President’s privileged communication to “singing in the shower.” “Nobody wants to hear that,” he said.
The lawyer also added that not all dealings of the President can be made public, and revealing those conversations to the public would be an embarrassment. “(It’s) like washing dirty linens before other countries,” he said.
Associate Justice Adolfo Azcuna, citing the constitutional provision on the accountability of public officers, stated that “public officers are at all times accountable to the people,” and that “in case of doubt, the Supreme Court will rule in favor of transparency.”
The Senate, through its counsel Atty. Pacifico Agabin, admitted the confidentiality of parts of Neri’s conversation with the President, but noted that the Senate could go into executive session upon Neri’s request.
“When there is a sensitive topic that is raised, we will not hesitate to go into executive session,” Senator Francis Pangilinan said. In his seven years as senator, Pangilinan said the Senate has not encountered the issue of executive privilege as Neri has insisted. “We have held executive sessions in the past, which we would consider should the executive branch request for it,” he said.
“The government, the most potent force to bring change to the lives of people, is locked in a stasis,” said Senator Mar Roxas in an Inquirer report. “The three branches of government are now caught in the mess that is the ZTE broadband deal.” Roxas remains optimistic though that the Supreme Court will decide in favor of truth and accountability.
Other respondents who showed up at the proceedings were Senate President Manuel Villar, Senators Rodolfo Biazon, Pia Cayetano, Jinggoy Estrada, and Jamby Madrigal.
‘Prudent proposal’
While not conclusive, the Supreme Court’s recommendation, according to Access to Information Network (ATIN) co-convenor Atty. Nepomuceno Malaluan, is “a prudent proposal to break the existing impasse — the deadlock on the issuance of the arrest warrant — without compromising both the executive branch and the Senate.”
Should the hearing proceed, Malaluan said that it is very possible for Neri to invoke executive privilege again. But he noted that there are still other matters that the Senate may delve into, like confirming the testimonies of Jun Lozada, who was not in the picture yet at the time Neri first testified.
Neri cannot invoke executive privilege on the subject because it does not involve any conversation with the President, according to Malaluan.
The lawyer also stressed that what is being tested now is the Executive’s broad invocation of the executive privilege — on government officials and documents — which compels the Senate to resort to the Supreme Court for remedies.
The high court gave the Senate 24 hours to deliberate on the proposal to drop the three questions in order to have Neri testify again. If they are to agree, the next Senate hearing is set on Friday.
19 Responses to SC proposes compromise as ‘executive privilege’ saga continues
jcc
March 5th, 2008 at 11:05 pm
You should be glad the SC was “mediating” it is better than washing its hand entirely by considering the issue “purely political” (in legal terms).
When political figures quarrel about botched “deals”, the SC can always wash it hands by looking at it s purely political issue (in political terms), and skirt it by invoking one or other principles:
“non-justiciable issue”, or “lack of judicially manageable standard to pontificate”, “no actual controversy”, unless Neri, by refusal to answer those questions would be detained by the Senate, or “ripeness issue”.
Haaayyy.. pati SC kasama sa grand palabas… Huminto na nga kayo diayan at asikasuhin ninyo ang mahihirap nating kababayan…
Ambuot Saimo
March 6th, 2008 at 12:20 am
The ultimate duty of the Supreme Court is to “decide” controversies based on stare decisis principle and has no business of being a mediator or issuing advisory opinions. When a case is brought before it, it can either deny cognizance of the case for such reasons/issues as being a “political question”, “ripeness”, “mootness” “standing issues”, etc.
This case involve an “issue” which is capable of repetition and yet evading final judicial review or to being finally put to rest. The problem is that for some reasons, when the Supreme Court decided on the constitunality/legality of EO 464, it failed to categorized albeit in general terms, what are covered by the privileged and what are not and so this mess. So, in the futre, everytime a cabinet level officer will be called by the senate/house to answer some questions, the officer/president will always go to the Supreme Court and ask “mediate” the case again, and again and again. It’s a waste of time, resources and people’s money. PORVIDA!!!
jcc
March 6th, 2008 at 1:37 am
As I said, the war over GMA’s ouster is being waged not only in the judicial trenches but also in the political landscapes, i.e., in the minds and hearts of the Filipino people.
Expect those group who would not be happy with whatever resolution the SC may come up with over the issue of “executive privileges”, to hit the political trenches again and renew on the streets their clamor for GMA to resign, under the guise of championing the cause of the Filipino people, instead of potraying their purely selfish political interest.
While I am not a believer of the SC in terms of probity, morality and good judgment, its role on the case seem to water down whatever partisan fire between the pro-GMA and the Anti-GMA. Skittish over the possibility that both may be able to persuade these “distinguished jurists” to come to their side and therefore reinfore their arsenal against the other, the entire exercise seems worth exploring, but in reality, nobody cares what the SC will say, unless it would say something favorable to their cause…. the “rule of law” is hardly the issue, but whose position is bettered by the SC’s “mediation” or “pontification”.
littlechicken
March 6th, 2008 at 9:44 am
Lumalabas parang nasa tsubibo tayo. Ang mga Pinoy ay gutom sa katotohanan. Patuloy na patuloy ang korupsyon at maraming exposee na hindi pa naimbestiga.Katulad ng pagbinta ng SSS sa nabiling stocks sa Banco de Oro ng 91.00 sa 51.00 lang, pabalik sa SM group.Ang pagkalugi ay bali wala sa kanila kasi ginastos nila ang pera ng taong bayan. Imbes ang mga miyembro ang makikinabang sa pamamagitan ng karagdagang benepisyo, lumalabas si Henry Sy pa ang kumita at the expense sa mga sss members.Grabe! Ngayon may kumita na naman sa pagbinta ng PTIC-PLDT shares. Magkano ba komisyon? Ph16B. At sa SSS-BDO deal?Ang nalugi ay 14 bilyon. Aba! bilyong-bilyon para sa kanila samantalang maraming pinoy naghihirap sa sobrang taas ng bilihin.
Ambuot Saimo
March 7th, 2008 at 1:55 am
The latest Supreme Court action of acting as “mediator” between the executive-legislative empasse in re: Neri is very disturbing and it seems it’s not getting attention from legal luminaries (if there’s such). The “mediation” function is not among the enumerated powers of the Supreme Court. Se below:
THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES
Article 8:
Judicial Department
SEC. 1.
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
SEC. 2.The Congress shall have the power to define…
SEC. 3.
The Judiciary shall enjoy fiscal autonomy…
SEC. 4.
(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a treaty, international or executive agreement, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be decided or resolved with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon, and in no case, without the concurrence of at least three of such Members. When the required number is not obtained, the case shall be decided en banc; Provided, that no doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
SEC. 5.
The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(2) Review, revise, modify , or affirm on appeal on certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d)All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
(6) Appoint all officials and employees of the judiciary in accordance with the Civil Service Law.
As you can see, there’s no provision express nor implied or even express from implied nor anything that would justify the application of ejusdem generis in stat. con. Rather, it’s very clear…its constitutional mandate is to “SETTLE ACTUAL CONTROVERSIES…….” as per Sec. 1 and not acting as “mediator/arbitrator”. The word “settle” connotes finality of the determination, whereas, mediation/arbitration is only a temporary solution. At least that’s what I learned from an old law book I found in a trash can. I could be wrong though. But is there another way to justify it? Tsk…tsk..tsk… what’s happening here?
jcc
March 7th, 2008 at 3:17 am
LittleChicken,
Matagal ko ng sinasabi dito sa PCIJ na pag intsik, tiyak malupit – sa dilehensiya….
jojo
March 7th, 2008 at 12:15 pm
I find JCC’s comment racist and repulsive. Doesn’t PCIJ weed out posts from village idiots?
Alecks P. Pabico
March 7th, 2008 at 10:05 pm
Let that serve as a warning then. But please don’t dwell in ad hominem attacks either.
jcc
March 7th, 2008 at 11:46 pm
Jojo/Alecks
That was not rascist. That was factual. Big Malls owned by chinese employ Filipino salesgirls and utility personnel for 6 months then allow the contracts to lapse. Rehire them after the lapse of a other month so they will not become permanent employees entitled to SSS, vacation and sick leave benefits under our labor laws.
One Lucio Tan was accused as the dummy of Mr. Marcos but when Marcos was gone, he’s got all the nerves to put up a grandeous claim that all those wealth was from his brawn. Bongbong was uncomfortable with it that he challenged to court this claim to wealth and fortune as solely Mr. Tan’s.
The comment prior to this was in response to Littlechicken’s claim that one Henry Sy raked millions on SSS transaction. If Mr. Littlechicken’s fact is wrong I owe the Chinese an apology, but my comment is generic. I have observed Chinese grip on the economy and how they manipulate our politicians.
My malicious mind supports the idea that the move behind GMA’s ouster was chinese inspired. ZTE, as I gathered from the press had already advanced some $41 million in payoffs to GMA’s camp. GMA had scrapped the deal and the Chinese groups were furious about this “double-cross” and they would want GMA out so they can make a “new deal” with whoever will replace GMA.
But you were right in your claim that I was a village idiot.
By they way, have you not noticed any error in my english? I am happy if you find one or two because it means that you realy comb my post to find out those errors and for that I am already flattered.
By the way
Ambuot Saimo
March 8th, 2008 at 1:19 am
jcc,
I think we went “off course” a little bit but if your allegation about salesgirls is correct, then, it is not just a joke. It’s a clear manipulation of the labor law. My question is: What are the labor unions/organizations/federations are doing about this? I think this is another area where Congress/Senate could conduct an inquiry in aid of legislation. But I remember there’s a sort of jurisprudence or a certain provision in the Labor Law which in essence says that if a person is employed by the same employer for an aggregate period of I think 12 months or more, that employee is considered permanent already. Is this really happening?
Malaking bagay ang being a casual and a permanent employee in terms of benefits and privileges.
Pesteng buhay talaga… mahirap ka na nga kukutungan ka pa ng mayayaman.
Little more about the Chinese: China is now awash with trillions dollars surplus and they are using this money to earn more and literally ‘conquer the world’ by their $.99 cents exports and investments following the Japanese footsteps with their Toyotas, Hondas, Mitsubishis, Sanyos,etc. (Recall that the Japanese failed to conquer the world militarily with the Axis Power during WWII but able to conquer it economically and singlehandedly. So, in every nook and cranny of the wolrd you will find a “Made in Japan”.) At present, the China have considerable investments in projects/infrastructures in the Africas and South America oftentimes using also Chinese manpower to the chagrin of the locals. In the Philippines, I surmise there are people who brokered or approached the Chinese because they will not do it by themselves considering that the Philippines is “Chinese-owned” already.
jcc
March 8th, 2008 at 1:46 am
Ambout,
To quote Meneleaus, brother of Agamemnon of the Movie Troy.
“I admire you as an adversary, but I admire you more as a friend”.
I believe that it is possible for us to disagree without being disrectful and now you have shown that we are capable of being just that. And we can also agree and even more respectful of each other.
I took back my harsh words before regarding your posts.
More power to you.
nosi balasi
March 8th, 2008 at 3:06 am
actually many of us are worst than racist…specially the educated ones…ei…kamusta na sina ryebosco at ge-em-ei…sino kaya ang may alam ng pagkawala nung dalawa…sana naman walang nangyaring masama sa kanilang dalawa…ryebosco at ge-em-ei…magparamdam naman kayo…
Ambuot Saimo
March 8th, 2008 at 6:54 am
jcc,
Of course there’s no substitute with civility esp. considering that it is only in Pinas where GMRC is a regular school subject which a pupil needs to pass. I’m not a regular blogger but rather an occasional “visitor” of this site since about 2-3 years ago. During that period, we engaged/exchanged ideas/views about many subject matters at times adversarial but careful enough not to offend or insult someone bec. of his educational attainment/background or stature in society. In fact, I cannot recall a single instance where somebody even hinted his educational background or alma mater for that matter. There’s no need to overemphasize it bec. you will know her/him by his posts. The bottom line is that everybody deserves respect.
The reason I reacted to your posts started when you mentioned about Merriam with emphasis about her “little knowledge is dangerous” thing and I cannot forget her statement (I think at the time when the JBC did not include her name for possible replacemnet of a retiring justice or maybe during a Senate’s confirmation hearing) where in essence she said that the position of the Justice or Chief Justice of the Supreme Court should not be filled up with a “FEU GRADUATE ONLY” apparently refrring to Justice Puno. To me, that’s a manifestation of bigotry or “law school superiority complex” similar to taunting the poor because of his being poor which is uncalled for esp. when you occupy a high public office. In short, whatever comments I made is not directed to you personally but to your “idol”. It happen bec. i thought then that you are one of her “diciples”. He.. he… he… But anyway.. carry on jcc….!!
jcc
March 8th, 2008 at 7:47 am
Ambout,
I am a bigot. I really do not believe that a Supreme Court Chief Justice be from FEU. Maybe they should come from Ateneo or UP. It is only incidental that Mr. Puno came from FEU, as you said, but morally and intellectually, I have serious doubt if he has those qualities. Of course I may be dead wrong… though how much I wish he has those qualities. Though I have serious doubt also that most of UP and Ateneo grads have the moral qualities deserving of a Chief Justice, but atleast, they have the good academic training to start with.
By the way, I admire Miriam because she is feisty. Feistiness that most of us mistake as a sign of lunacy. Maybe we need lots of lunatics to make the country great. Though, please tell me if you have any news about Senator Santiago being involved in any bribery. Just as I believe that FPJ won against GMA, I really think that she won over Fidel Ramos.
But of course plenty of us may find my post highly objectionable, but this is the beauty of democracy – lunacy and sobriety comes hand in hand, one may mistake one for the other.
I am trying to disagree with you without being disagreeable. Though many FEU grads may find my post repulsive, please be assured that my post is but an expression of an honest opinion.
nosi balasi
March 10th, 2008 at 3:50 am
ano nga ba ang barometro ng kaalaman?…o eto nga ba ay isang uri ng diskriminasyon…ano nga ba ang importante…ang eskwelahan o ang mga natutunan?…ang pinag-aralan o ang umaktong may pinag-aralan o isa-buhay ang mga natutunan sa eskwelahan o isakatuparan ng tama ang tungkulin…kung ito ay isang uri ng diskriminasyon…at importante lamang ang eskwelahan…walang kaduda-duda na kahit kailan…walang puwang ang pag-asenso ng ating bansa…kung umaktong may pinag-aralan…hohuuum nakakaantok na…matulog na lang kaya.
jcc
March 10th, 2008 at 6:25 pm
nosi balasi,
Your posts are well-meaning and I respect you for that. But if you are an employer recruiting an in-house counsel and you have three applicants, from Ateneo, UP and FEU your choice would be between the Ateneo grad and UP grad.
This explains why most “Wanted Lawyers”, newspaper ads contain a condition that applicants must be from UP and Ateneo only.
Equality is ideal but we are not living in a very ideal world.
The resume submitted by these applicants do not contain the information that their moral backgrounds are impeccable and even if they contain these information employers do not take them on their face value. The employer is satisfied enough that inasmuch as they have graduated from law schools and become lawyers, they know the concept of right and wrong. So the FEU graduate do not have any advantage assuming that he is more morally upright than the UP and Ateneo applicants.
It should be in the matter of recruiting a Chief Justice of the Supreme Court.
It is very easy for most of us to portray the image that we are for “pro- equality”, “pro-justice”, “pro-good-governance” and “pro-people”, because these are popular concepts and quite frankly very trendy, though we do not really hold those beliefs dear in our hearts.
I have taken a position opposite to the popular concept of equality and postured that graduates from FEU are not as good as the graduates from Ateneo and UP because simply that concept is not true. Call me a bigot, or whatever, but I hold that position dear to my belief and I am being honest about it.
jcc
March 10th, 2008 at 11:03 pm
Error: ” x xx UP because simply that concept is true.”
Ambuot Saimo
March 11th, 2008 at 1:52 am
Nosi,
The guy showed us his true color. Huwag mo na lang pansinin. Ito ‘yong mga tao na “KSP” (‘kulang sa pansin’ o maaring ring ‘kulang sa pag-iisip’ tulad ng idolo ‘nyang mas kilala sa pangalang “Brenda”. Mga sobrang bagyo!!! Daig pa si Wilming. Mantakin mong nag-attend lang ilang araw na symposium sa Harvard sasabihin nang taga-Harvard kuno. Susmaryasep, Ginoo patawarin!!! Itong isang ito, naging trial lawyer lang at awtor ukol sa anay kuno, aba, mahihiya si Bush sa kahanginan, eh. Aywan kung pinasasakay lang tayo, pero para sa akin hindi na ako sasagot sa anumang post nito. Delikado Pards, baka mahawa pa ako. Kawawa naman ‘yong pamilya ko. He, he, he…
(psst…atin-atin lang ito … ang totoo ay awtor din ako ng isang librong may pamagat: “Alikabok Sa Utak: Pagsusuri Ng Kayabangan”. Bibigyan kita ng libreng kopya.)
Jcc,
Adios….!!!!
jcc
March 11th, 2008 at 2:01 am
Ambout,
You are arguing ad-hominem again.