Senate skeds ZTE probe; new witness to surface

April 1, 2008

Not about to give up an inch in the possibility of losing its powers vested on the body by the Constitution, and refusing to be categorized as an inferior body, no longer co-equal to both the Executive and Judicial branches of government, a senator yesterday announced that the controversial ZTE-National Broadband Network (NBN) probe will go on, saying the Senate is ready to unleash a new “secret witness.”

Sen. Alan Peter Cayetano, chairman of the blue ribbon committee, announced this new development, even as he declined to provide any clue on the identity of the new witness, as well as the extent of his knowledge of the deal.

At the same time, senators said they are ready to challenge the Supreme Court justices’ authority on the issue of their intrusions into Senate affairs on account of the SC’s argument of infirm in-house rules, while putting to question the Court’s previous ruling involving Presidential Commission on Good Government (PCGG) officials which upheld the powers of the Senate to cite in contempt and issue arrest orders, based on the same set of rules.

Cayetano indicated this will be among the major contentions the Senate is to introduce in presenting its Motion for Reconsideration (MR), which is likely to be filed on April 8.

The Senate has until April 10 to file an MR.

“We have a number of arguments we will be bringing up before the SC that could either be new or not. Let me just say that they are very persuasive based on solid arguments we want come up with, rather than target these as new or old. It’s how powerful, how persuasive and how solid the arguments are.

He added that for the Senate, the issue is “really to go beyond the ZTE case and to look at all the other investigations as pointed out by the Chief Justice himself. Because of the experience during the Marcos era, we’ve grown to be quite cautious in handling foreign loans and it needs full disclosure and with the present decision, the SC justices (in the majority) are now claiming that once it’s an executive agreement it’s covered by the executive privilege or that it’s part of the presidential communication. We will show the SC that basically by this decision, it has negated an explicit provision of the Constitution where the constitutional intent is clear that never again would future generations be made to sink deep the country into debt,” he said in giving reporters during a press conference a glimpse of what will be the form of the appeal the Senate is polishing now and will be presenting before the high court.

“What’s really our strong argument on this matter, if this (SC) argument will be affirmed, is that there would be a policy of concealment on matters of great public interest and things that could lead, really spur the growth of criminal syndicates in the government,” he said.

Since the issue in focus is about executive privilege, Cayetano said they would be citing American jurisprudence to back up their position since the country’s Constitution is based on the concept of the US.

“We will be filing our MR, we will be articulating our previous arguments and try to make it more persuasive. We’ll be coming up with new arguments and part of it is to address the decision as far as our rules because we feel that we weren’t given a chance to talk about our rules precisely because it was during the last minute period when the position the solicitor general presented its side.

Chief Justice Puno was quoted earlier as saying that for the decision to have a reversal, new and strong arguments must be presented.

Cayetano claimed that “the other new argument really is to show the SC that we cannot talk about separation of powers without talking about check and balance. The two come together, it can not be separated from the other—the issue of check and balance and the separation of powers,” he said.

“What is happening right now is what Malacañang wanted all the time. It wanted blanket authority…that it will be accountable to no one. So whether it’s a motion for reconsideration or motion for clarification, I leave the nomenclature to the lawyers. The point is we don’t agree with many of the statements in the decision and we are going to question it.

“First choice is for a reversal. Second is for clarification,” he said.

He insisted that as far as the rules go, they have been posted in the internet. In the case of Sabio vs Gordon, sa PCGG, the same will be applied,” he said.

Amid the continuing legal battle over the SC’s decision upholding the administration’s right to invoke executive privilege on some matters that senators want to inquire on, a parallel debate is likely to ensue as lawmakers pointed to the erroneous assertions of the SC justices over their failure to publish their own rules as this is backed up with records.

Contrary to reasons cited by the SC in its ruling on the case involving Commission on Higher Education (Ched) Chairman Romulo Neri, the Senate had its rules of procedure governing inquiries in aid of legislation published in dailies of national circulation, thrice already, the most recent of which was on Dec. 1, 2006, it was gathered.

Records at the upper chamber showed that initially, after the bicameral Congress was reconvened in 1987, the upper chamber, with then Senate President Jovito Salonga at the helm, had its rules published in Aug. 21 in at least three dailies – Malaya newspaper, the Philippine Daily Inquirer and the Philippine Star.

Amendments were introduced during the 8th Congress, the reason senators opted to see it printed anew in Aug. 21 and 25 in the year 1995.

The amendments involved those concerning the rights of the witnesses.

The said set of rules was published for the nth time without amendments on Dec. 1, 2006 also in PDI and Star where the Senate spent a total of P113,632.

“Needless to say, the Senate rules have been duly published in accordance with Sec. 21, Article VI of the Constitution,” Senate President Manuel Villar Jr. said.

As such, as a continuing body, it is not required to publish the rules every Congress, he said.

Meanwhile, Cayetano admitted to reporters that the witness he had earlier disclosed as having talked with and who is yet to surface has not backed out and is still willing to testify.

“He’s still there. I’ll let him explain why he has not come out in the open. Supposedly, he’s still gathering some documents and (possible) evidence. Let’s stop at that,” he said in a press conference.

Cayetano indicated that the new witness is just one of the few or many that they are still lining up to appear in their proceedings, saying that some of his colleagues are also working out other possible resource persons.

But the senator would not provide additional details other than giving a hint on the continuation of their probe, the resumption of which was supposed to take place today had the SC not issued its ruling last week.

“Let me just say that I’m not the only one trying to talk to these witnesses or Sen. Ping (Panfilo Lacson. There are a lot of people who know about this and let’s stop there. There’s no use speculating because in the end if they come, they will tell their story. See what happened in the case of Leo San Miguel,” he stressed.

When pressed for more information, Cayetano was prompted to admit that there could be more than one additional surprise witness.

“There’s a level of coordination taking place so I and Sen. Lacson could be talking to the same witness or not, so for our own security and for the peace of mind, we’d rather not name names,” he said.

Cayetano said he sees to it that he keeps abreast of these developments with his colleagues, especially his co-chair in the probe, Sen. Manuel “Mar” Roxas II and the upper chamber leadership – the Senate President Manuel Villar Jr. and Senate President Pro Tempore Jinggoy Estrada.

“Our focus right now is to file the best motion for reconsideration and after that we’ll be meeting on what to do but the committee will continue what it has to do.

“After the MR, we’ll be sending out letters on the other investigations and we will see if the documents would be given voluntarily or will have to be subpoenaed. I’m determined to let the witnesses testify themselves. But right now, things like this crop up because they are not yet considered as voluntary witnesses,” he said.

Cayetano said they are also now studying the option of seeking a deposition having retired police Gen. Quirino dela Torre who is said to be ill.

“It’s just that we’re also wary that some senators would want to ask questions themselves…but everyone else who were invited in the last hearing, we sent letters.

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