Brutally frank views from former Chief Justice Artemio Panganiban

March 31, 2008

Former Chief Justice Artemio Panganiban gave a blunt view on the raging debate over the apparent capitulation of the Supreme Court (SC) to the Executive and at the same time its incursion into the authority of the Senate after ruling that former Socio-Economic Secretary Romulo Neri can invoke executive privilege to evade three key questions on the National Broadband Network (NBN) scandal.

Panganiban did not mince words in saying the majority decision that was contained in the ponencia of Justice Teresita Leonardo de Castro and concurred in by Justices Renato Corona, Dante Tinga, Presbiterio Velasco Jr., Antonio Eduardo Nachura, and Arturo Brion “failed to check” presidential abuse; worse it imprudently expanded executive privilege to cover wrongdoings.

Panganiban in one of his regular opinion pieces aptly named Arroyo Supreme Court?, pointed out nearly the same argument of Chief Justice Reynato Puno in his dissenting opinion: that it was hard to hide the Palace influence in the majority decision. He criticized the use of mostly baseless and inapplicable precedents and reasons to back up the decision of the majority of the Justices.

Panganiban for instance noted that to justify Neri’s refusal to answer the three crucial questions related to his discussions with Gloria on the kickback-rich NBN deal, the majority deemed privileged conversations that took place in the performance of her duty and the majority at the same time referred to what can only be termed as a “proof-less” claim of Excutive Secretary Eduardo Ermita that Neri’s disclosures might impair the country’s diplomatic relationship with China. Yet that baseless claim of Ermita and Neri’s lawyer, for that matter, seemed to be held up by De Castro and the majority as “Grade A” evidence to justify a big criminal cover-up by Gloria and her aides.

The decision also shifted the burden of proof to the Senate, in effect reversing a decision issued just two years ago in “Senate vs. Ermita” that places on the Executive the need to prove the necessity of secrecy. “Disclosure is the rule because the Constitution expressly mandates transparency and accountability for all officials,” Panganiban says.

Panganiban also discussed how executive privilege was not expressly provided in the Constitution while the power to investigate in aid of legislation is expressly granted by the Constitution to Congress. “In a clash between these two prerogatives, the choice is clearly in favor of the express grant,” according to Panganiban.

Also, Panganiban wondered if the majority even did their homework in penning the decision noting that the decision ruled against Neri’s disclosure using an inappropriate argument based on “US vs. Nixon.” The US case involved a criminal action while that of Neri’s petition related to a legislative inquiry, Panganiban asserts.

Being the former head of the Tribunal, Panganiban lamented the missed opportunity of the SC to assert its independence by leaving a legacy in the judiciary in issuing a landmark decision. The quality of the current high court will be measured by how it will be remembered by the people, according to Panganiban.

“An epochal Supreme Court is endearingly named after its chief, like the Davide Court or the Teehankee Court. But when it unduly legitimizes kingly excesses, it is derisively named after the president it serves, like the Marcos Supreme Court,” he says. Without directly saying it, Panganiban suggested that the Neri decision may tilt the balance in public opinion on the SC and give it the name of the Arroyo Supreme Court.

It must quickly choose what it wants to do. Is it to serve or to check President Arroyo?, Panganiban posed the challenge to the Tribunal.

Gloria in her political self-preservation effort has given her best to influence all who are willing to be coopted in the government.

The SC, which is placed in a pedestal in terms of public respect, should be above all the political rot that has been the hallmark of Gloria’s administration.

The SC giving in to Gloria further eroded the people’s hope of ever enjoying a decent government.

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