Senate rejects SC solution to Neri’s NBN testimony

March 5, 2008

It’s back to square one on efforts to compel former Socio-Economic Planning Secretary Romulo Neri to bare what he knows on the anomalous National Broadband Network (NBN) deal before a Senate inquiry after senators rejected yesterday a supposed Solomonic solution offered by the Supreme Court.

The proposal, initiated by Chief Justice Reynato Puno and Associate Justice Antonio Carpio, provided for Neri to attend the Senate hearings to testify on the bribery scandal but that he still can invoke executive privilege on three questions asked by the Senate of Neri during last’s year’s ZTE hearing.

The controversial questions were “Did the President have any interest in the NBN project?”, “Did the President order Neri to prioritize the NBN deal?” and “Did she (President) order the continuance of the project despite allegations of bribery?”

Senate President Manuel Villar Jr said the Senate decided to reject the SC solution after a caucus Wednesday afternoon, adding the Senate will give the High Court a formal copy of its position today.

We cannot agree to the proposal since it will compromise the powers of the Senate over the issue, Villar said.

“We cannot allow ourselves to be a party of something that will compromise the powers of the Senate,” he said.

SC spokesman Jose Midas Marquez said in the SC proposal questions where Neri invoked executive privilege will be brought back to the Tribunal for determination on whether the executive privilege has been validly invoked.

Marquez stressed that this will help the justices in coming up with a decision defining the parameters of the executive privilege provision.

He said the SC is expected to be able to resolve in a few weeks whether the executive privilege was present in the three questions

Chief Justice Reynato Puno proposed the compromise to break the deadlock between the Senate and Neri due to his refusal to testify before the Senate probe on the NBN deal.

Neri’s lawyers agreed to let Neri appear at a Senate hearing on the ZTE broadband deal on the condition that Neri will be allowed to invoke executive privilege on sensitive questions.

“If senators don’t buy Neri’s invoking of executive privilege, they can question it before the High Court,” Marquez said.

Last Tuesday, Chief Justice Reynato Puno suggested that the Senate and Neri’s camp should agree on a compromise to break the deadlock arising from the refusal of the embattled Cabinet secretary to further testify in the Senate investigation of the NBN scandal.

Puno and Associate Justice Antonio Carpio said Neri should appear before the Senate investigation to answer all the senators’ questions.

The magistrates suggested that the Senate exhausts all questions with regard to the NBN-ZTE bribery scandal and those questions that Neri would refuse to answer on the ground of executive privilege would have to be set aside and be brought back to the Supreme Court through a supplemental petition for determination of whether the executive privilege were validly invoked.

Senators Manuel Roxas and Allan Peter Cayetano, chairmen of the Senate committees on trade and industry and the Blue Ribbon committee, respectively, said they would have to consult first the concurrence of the Senate as a whole before deciding on whether or not to accept the proposal or not.

“We have all agreed to consult our colleagues as this will be an action by the entire Senate. We have the Senate majority leader, we have the committee chairs here, and this will clearly bind the Senate and the future Senate. So we will continue to consult,” Roxas said.

“Our best case scenario is to uphold the power of the Senate to conduct investigations in aid of legislation but we have to find a middle ground,” Cayetano said.

Cayetano said his colleagues prefer that the SC should eventually resolve all legal issues pertaining to executive privilege.

Neri’s lawyer Antonio Bautista said his client is willing to appear before the Senate anew as long as the three questions where he earlier invoked executive privilege will not be asked anymore. The questions were: “if GMA had followed at ZTE project at NEDA; if she had directed Neri to prioritize ZTE project; and if GMA ordered to go ahead with the project despite being informed of the alleged anomaly.”

As of this writing, the Senate has yet to come up with a decision on whether to accept the proposed “compromise settlement” to pave the way for Neri’s reappearance to the Senate to testify further the controversial NBN project.

Senator Manuel Roxas II earlier said the compromise offered by the SC would likely be acceptable to the Senate.

Roxas, co-chairman of the Joint Senate Committees probing the NBN deal, said he believes the high court offered a “reasonable and practical way forward” by offering a compromise: to let the former Socioeconomic Planning Secretary Neri appear before the Senate, but the “three questions” where Neri previously raised executive privilege would be “deemed asked.”

“I find this a reasonable, practical way forward. This is an assertion of the Senate’s right to call on resource persons in the conduct of its hearings. It also prescribes a sound process for the Court to look at how the Office of the President uses executive privilege,” Roxas said, adding that this spares everyone the need to keep coming back to the Supreme Court for guidance every time executive privilege is invoked.

Emerging from the said caucus, Minority Leader Aquilino Pimentel Jr. along with Roxas and Benigno “Noynoy” Aquino III announced to reporters that “no consensus” was reached on the SC proposal.

The high court expect senators to come up with a position on their compromise offer to resolve, for the meantime, the matter of Neri continuing his stalled testimony before the three Senate committees inquiring into the ZTE deal as he invoked the so-called “executive privilege” when the matter involving Mrs. Arroyo was discussed.

Neri’s defiance led to the Senate’s issuance of an arrest order, its legality being the subject of oral arguments before the SC.

After a showdown of sorts before the SC with Neri’s lawyers, senators opted to take a definitive and firm stance on having ample powers and authority over Cabinet members called to shed light on matters of alleged irregularities in government, including issues that concern criminal prosecution as in the case of the former NEDA chief on him supposedly confessing the failed P200 million bribe offer of resigned Commission on Elections chairman Benjamin Abalos to Mrs. Arroyo.

Neri, following his appearance in the Senate last September, came short of confirming or denying whether Mrs. Arroyo still ordered him to approve the contract despite the allegations of bribery.

“We came up with a practically unanimous stand. The SC is unable to disembowel the Senate of its powers,” Pimentel said.

The minority leader “helped” in enlightening his colleagues on the implication of such move, which even some administration members are also wary of as it could set a precedence in their proceedings, said Villar led in rallying against it.

“I could sense that that move of senators is a stand that in effect we will not allow the institution to be diminished by a self-inflicted action.

“It is like handcuffing ourselves and it will result in our inability, empowered by our constitutional duty to ferret out the truth. The sentiment of the Senators was clear – that we don’t want a diminution of powers that will affect the institution,” Pimentel said.

“Neri is not even an issue here. Neri is only incidental,” the minority leader said, adding that the main argument during their discussions was the “institutional damage” it will create should they accede to it.

At least 14 of the senators present agreed to the position presented by Villar, Pimentel and Cayetano, swaying those reported to have taken a “soft stand” affirming to the proposition of SC such as Senators Rodolfo Biazon, Aquino, Roxas and Sen. Panfilo Lacson.

“He (Neri) can appear but we cannot compel him to testify, what is that?” Pimentel said referring to the conditions set by the SC under the said compromise agreement.

Roxas, in relaying the outcome of their caucus, was open in expressing his disappointment over the turn of events as he is obviously agreeable to the SC’s compromise agreement.

In view of the decision they made, the lawyers that represented the Senate will either submit a memoranda or a manifestation of their position.

Although administration Sen. Juan Ponce Enrile was not present during the caucus along with Senators Edgardo Angara, Joker Arroyo, Lito Lapid and Ramon “Bong” Revilla Jr., it was apparent in Enrile’s statements issued prior to the meeting that he supports the contention of most of his colleagues.

“We appreciate the suggestion of the SC so that we will not be derailed in our activities in the Congress but I will have to study that because of the very character of our government. We are supposed to be a government of three equal departments and and one is not above the other,” he said when asked for a reaction to the compromise agreement.

“I have to study the implications of a compromise like that. I think it would be better if the SC will perform its function as the arbiter of constitutional issues.

“And in the Senate we can do some other things until the SC makes a definitive ruling on the issues and issue the constitutional law and rule involving the issues so that the legislative and the Executive department of the government will be guided accordingly.

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