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Dissenting Justice: Exec privilege used to hide crime

At least one of the six high court magistrates who voted against allowing Higher Education chairman Romulo Neri to hide behind the cloak of “executive privilege” says the doctrine should not have been allowed to be used as a shield against the uncovering of a possible criminal offense.

In a 38-page dissenting opinion, an echo of Chief Justice Reynato Puno’s dissenting opinion, Associate Justice Antonio Carpio said since Romulo Neri and President Arroyo talked about a crime, pointing out that Neri and his counsel had admitted that Neri talked about “bribery scandal involving high government officials” with her, executive privilege cannot therefore be invoked.

“The invocation of executive privilege on the three questions dwelling on a bribery scandal is clearly unjustified and void. Public office is a public trust and not a shield to cover up wrongdoing. Petitioner must answer the three questions asked by the Senate committees,” Carpio stated.

“Executive privilege can only be invoked after the question is asked, not before, because the legislative committee may after all not ask the question. But even if the follow-up questions call for the disclosure of confidential presidential discussions or diplomatic secrets, still executive privilege cannot be used to cover up a crime,” he said.

Carpio also pointed out that the letter of Executive Secretary Eduardo Ermita permitting Neri to

invoke executive privilege only made a general claim that the answers would affect diplomatic matters.

“The bare claim that disclosure ‘might impair’ diplomatic relations with China, without specification of external evidence and circumstances justifying such claim, is insufficient to give rise to any presumptive executive privilege,” he said.

Neri, Carpio said, does not even know if the Department of Foreign Affairs (DFA) was involved in the NBN negotiations.

“This is incredulous considering that under the Revised Administrative Code, the DFA ‘shall be the lead agency that shall advise and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations,” the justice said.

Carpio also criticized the statement that the country’s economic relations with China would be impaired, saying such an impairment was not a valid ground for invoking executive privilege.

Ermita also did not claim military or national security secrets as his reason for the invocation, and only cited the confidentiality of presidential conversations and impairment of economic and diplomatic relations.

Neri, by claiming that his discussions with Ms Arroyo referred to a bribery scandal that affected diplomatic relations and economic and military affairs, expanded the grounds that Ermita had cited.

He added that if Neri answers the three questions, he would not disclose confidential presidential communications, as the latter’s counsel admitted during the oral arguments.

Carpio also said follow-up questions could possibly call for the disclosure of confidential presidential discussions and diplomatic secrets. However, he said executive privilege could only be invoked after the questions are asked.

Senate probers denounced the Supreme Court’s decision, stressing that the ruling practically cripples their right to investigate matters of public concern.

Despite this setback, Senate probers are not only going to challenge the SC’s decision, despite the improbability of a reversal of the ruling, but pursue the resumption of the inquiry and even call on Neri anew.

Senators Alan Peter Cayetano, Rodolfo Biazon and Manuel “Mar” Roxas II, who sit as chairmen in the botched ZTE deal probe implicating Neri, are bent on continuing with their respective panels’ investigation and are not about to terminate the proceedings as what is being called by the Palace.

“They are effectively with this (decision), putting the handcuffs on the way we hold investigation, trivializing our fact-finding and actually, they are not acknowledging the information dissemination and advocacy of the Senate,” Cayetano in a press conference.

“This will be a continuing battle and I expect that the Senate won’t give up on this. I certainly will not give up on trying to find out the truth,” Roxas, chair of the trade and commerce committee, said.

Biazon admitted that the high court’s ruling is a big blow to the principle of transparency in government. “I am surprised at the ruling of the Supreme Court. Transparency provides the means as a co-equal branch of government such as the Legislature to perform its oversight functions and provide check and balance.Without transparency, there can be no check and balance. Without check and balance, there can be no democracy in this country,” he said.

Biazon questioned the apparent change in the position of SC justices claiming that during the oral arguments proceedings on the said Neri petition, there was a consensus by all the members of the high court that executive privilege can not be used to cover up the commission of crimes.

Senators Francis Escudero and Panfilo Lacson shared the same sentiments citing the implication of the decision on the upper chamber’s powers in ferreting out the truth over matters of irregularities in government dealings.

The senator pointed out that the SC ruling emphasizes that executive privilege does not give ample reason for Neri not to appear before them if called anew.

For those implicated and called to testify before them, Lacson said this will give them enough grounds to invoke the same and stonewall their probe.

Also, congressmen urged Speaker Prospero Nograles to make a firm stand against the high court pronouncement.

In the weekly Ayes and nays News Forum, Reps. Antonio Cuenco, Roilo Golez and Teddy Casiño took turns in criticizing the SC decision agreeing that the high court verdict resulting from a nine – six votes is “tantamount to an assault on the separation of powers” as it would render Congress inutile in its future inquiries in aid of its function as a legislative body.

“This is an invasion of legislative supremacy. We are supposed to be co-equal,” Cuenco stated. “We consider the SC ruling as a derogation of the congressional power for investigation.”

Cuenco however says he still sees a glimmer of hope that the SC would reconsider its position with a motion for reconsideration expected to be filed by the Senate.

“I hope the motion for reconsideration would finally put an end to the (NBN) controversy. I hope a motion for reconsideration will result in SC changing its mind, after all it has been changing its mind on several issues, I hope the SC will take a good second look about this whole thing,” Cuenco added.

For his part, Golez said the SC decision does not only apply to the Senate on the Neri case but to the House as well.“The same principle will apply identically,” said Golez. “I have strong reservation but we have to respect the SC as a co-equal body.The Senate and the House are being neutered or caponized,” he pointed out. “This is tantamount to an assault on the separation of powers, an assault to the legislative power of inquiry.”

Golez stressed that “In US ruling, executive privilege cannot be invoked for a potential crime. It is clearly laid down. Executive privilege cannot be used to cover-up a wrongdoing,” Golez explained.

The United Opposition (UNO) sees the SC decision on executive privilege as “unfortunate,” but believes the public will continue to seek the truth behind the NBN-ZTE controversy - as well as other scandals in the government - through other means.

Makati Mayor and UNO president Jejomar Binay said the high tribunal’s decision could increase the public’s interest in symposiums, lectures and other educational assemblies organized by the opposition and civil society groups.

It could also mean more newspaper readers and reviewers of TV news and public affair shows, and increased traffic on web sites dedicated to the government scandals.

“Far from ending the search for truth, the decision of the Supreme Court could have the effect of moving people in other directions,” he said.

But for Binay, the biggest “casualty” of the ruling is the standing of the Supreme Court.

“Under the Arroyo Administration, the public has learned to trust the courts as an independent institution. But with this decision, the public may view the judiciary with a certain level of skepticism,” he said.

Observations that the decision was “political” cannot be helped, Binay added, since the nine justices who made up the majority were all appointees of Mrs. Arroyo. Benjamin B. Pulta, Angie M. Rosales and Charlie V. Manalo

source: http://www.tribune.net.ph/headlines/20080327hed2.html

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Tags: Escudero, Neri, SC, Senate, Supreme Court, ZTE

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