SC warned: ‘Executive privilege a refuge for scoundrels’

April 8, 2008

High court to be held responsible for country’s path to gov’t autocracy — Senate

If the Senate goes down, it will go down fighting.

This was seen in the motion for reconsideration (MR) prepared by the Senate where the high court was warned of the danger and the chilling effect of its decision upholding President Arroyo’s invocation of executive privilege even when the issue involves a crime, pointing out that executive privilege will have become a “refuge for scoundrels” without a reversal from the Supreme Court, stating that the SC bears the responsibility of paving the way for an “autocracy.”

Lawyers representing the Senate yesterday made good on the upper chamber’s earlier promise to appeal the SC decision on the petition filed by former National Economic and Development Authority (Neda) Director General Romulo Neri.

Describing the SC’s March 25 decision on the petition filed by as a “dangerous and chilling decision,” the Senate committees on accountability of public officers and investigations (blue ribbon), trade and commerce and national defense and security asked the high tribunal to reconsider its ruling in a 105-page motion.

The Senate committees also urged the court to schedule another oral argument on the issue and to require Neri’s presence.

In the last oral arguments, Neri was not present, and his lawyers failed to explain or clarify the issue, always stating that he (the lawyer) “could not fathom what was discussed between Neri and the President.”

The respondent committees suggested that the oral arguments be held behind closed doors.

“The Neri decision did not by any stretch of one’s imagination, contribute to the fight against graft and corruption. Rather, it directly makes the executive less transparent and weakens government accountability. In the face of a pattern of concealment by executive officials as apparent in many legislative investigations, the dangers of abuse of executive privilege by the executive branch have significantly increased,” the Senate committees said .

“Rightly or wrongly, the perpetuation of this Neri ruling will cause the lingering impression that this Court, through the ponencia of Madam Justice Teresita de Castro has lost its independence,” they added.

The respondent Senate committees in their motion for reconsideration also said that while they recognize the difficulty in deciding a question of first impression, especially when the issue involved in what appears to be a direct clash between two contending co-equal branches of government, they stressed that the court must perform its sworn duty with impartiality and circumspection “not to the benefit of either branch, but as an end unto itself.”

The Senate committees added that the Neri decision “seriously strikes a debilitating blow” to the mechanism of checks and balances among the three departments of government which is designed to ensure the continued survival of a living and growing republican state.

“By legitimizing the mere presentation by the executive department to the Senate of a letter invoking executive privilege and by ruling, in effect, that the Senate should desist making any legitimate inquiries upon receipt thereof, the Neri decision effectively provided the executive department with a simple, ready and expedient tool to resist legitimate legislative inquiry,” the committees said.

“Unfortunately, the Neri decision if allowed to become final, shall be the jurisprudential springboard to unduly destroy such inevitable friction (between the three branches of government) paving the way for autocracy in our government,” the committees added.

They stressed that if not corrected, the Neri decision could “effectively turn executive privilege into a refuge for scoundrels.”

“This could make it easier for misguided government officials to commit wrongdoings with utmost concealment and impunity,” they said.

“When secrecy is invoked amid accusation of corruption, it is nothing but a tool for a criminal cover-up. If allowed to become final, it (decision) could result in a democracy of kept secrets buttressed by the Neri jurisprudence,” the committees added.

In their 105-page motion for reconsideration, the three Senate committees said that in upholding the claim of executive privilege to shield the President against what was perceived to be undue encroachment by the Senate, the majority opinion rendered the Senate and its committees “inutile to inquire into actions of the President which are clearly relevant to issues of profound national concern and which are evidently necessary to craft much-needed legislation to address such issues.”

“Worse, in arriving at its decision, the majority of this Honorable Court seem to have turned a blind eye to facts which are of record and disregarded settled jurisprudence. Instead, the majority seem to have uncritically taken the representations of petitioner (Neri) at face value and adopted his position hook, line and sinker,” the motion said.

The Senate committees asked the Court to “carefully re-examine the facts, carefully apply the proper laws and jurisprudence in their appropriate perspective and in accordance with their intent, and hopefully arrive at a more circumspect decision to ensure that we have a workable government.”

In their motion for reconsideration, the Senate committees stressed that contrary to the Court’s decision, there is factual or legal basis to hold that the communications elicited by the subject three questions are covered by executive privilege. The Senate also stressed that the constitutional right of the people to information, and the constitutional policies on public accountability and transparency outweigh the claim of executive privilege.

The three questions were: Did the President follow-up the ZTE deal with Neri, did the President order Neri to prioritize the $329 million ZTE-NBN deal and did the President order the pursuit of the project despite being informed by Neri of the alleged bribe try.

The Senate committees also argued that they did not commit grave abuse of discretion in issuing the contempt order on Neri as there was no legitimate claim of executive privilege, the contempt order was issued in accordance with the Senate’s internal rules and that the rules of procedure were duly published.

The Senate committees also argued that by answering the three questions, Neri will not impair the country’s economic and diplomatic relations with China’s ZTE being the NBN project’s contractor is just a private corporation.

In addition, the Senate committees also debunked the claim of Executive Secretary Eduardo Ermita that executive privilege was claimed by Neri in behalf of the President during the Senate hearings into the NBN deal, as it involves military secrets.

“There is likewise absolutely no factual basis for the belated claim that the disclosure sought involves military secrets,” the committees said in their motion.

“In any event, the claim of executive privilege based on state secrets, whether diplomatic or military in nature, is misplaced,” the Senate committees said.

In its March 25 decision penned by Justice De Castro, the Court voted 9-6 and agreed with Neri that the three questions being asked are covered by executive privilege. In a separate vote of 10-5, the Court also ordered the Senate to desist from ordering Neri’s arrest for contempt as the Senate has yet to publish its rules of procedure.

In his 120-page dissenting opinion, Chief Justice Reynato Puno did not give credence to the claim of Ermita that the country’s relationship with China may be put at risk if forced to answer the three questions.

Puno said Ermita failed to offer an explanation on how diplomatic secrets will be exposed at the expense of national interest if petitioner answers the three disputed questions propounded by the respondent Senate committees.

Puno noted that the questions to Neri have direct relation not only to the subject of the inquiry, but also to the bills pending before the Senate such as Senate Bill No. 1793 which intends to amend Republic Act No. 9184 or the Government Procurement Reform Act, Senate Bill No. 1794 or “An Act Imposing Safeguards in Contracting Loans Classified as Official Development Assistance’ and Senate Bill No. 1317 or “An Act Mandating Concurrence to International Agreements and Executive Agreements.”

For its part, the Court, which is holding summer sessions in Baguio City yesterday said it would calendar for an en banc deliberation the motion for reconsideration filed by the three Senate committees on April 15 and will resolve the issue in “accordance with the Constitution, law, and Rules of Court.”

The Court also said that the Senate has the prerogative to file a motion for reconsideration in accordance with the Rules of Court.

By Benjamin B. Pulta

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