WHAT DOES IT MEAN?

Almost a week after the Supreme Court handed down Neri v. Senate, its ramifications are yet to be felt (except on the second part wherein Romulo Neri asked the Court to nullify the Senate’s arrest order; it is now being used by the Fortress lackeys as an excuse not to attend Senate hearings). Its impact has yet to sink in.

First, let me summarize how the decision went. Associate Justice Teresita de Castro wrote the decision, and she says that the three questions that Neri refused to answer are covered by executive privilege for three reasons:

1. The answers to the three questions refer to a conversation between the President and a close advisor. This satisfies the presidential communication privilege and the operational proximity test.
2. The answers refer to an exercise by the President of powers that is “quintessential and non-delegable,” and does not require concurrence of the Senate.
3. There is no compelling need to limit the privilege and disclose the information.

In his dissenting opinion, Chief Justice Reynato Puno disagrees, stating that Executive Secretary Eduardo Ermita’s claim of executive privilege is vague and too generalized, and thus the Court can’t reasonably rule if the answers to the three questions are covered. Arguing that it is covered because it is presumed to be privilege, that presumption is not absolute.

Also, he asserts that non-disclosure means the Senate cannot craft bills based on facts. The questions propounded are pertinent to pending bills, and that the information that the Senate needs cannot be gathered elsewhere.

My View

Executive privilege should be respected, yes, but it should be respected if the claim is valid. The problem with de Castro’s contention is that a formal claim and a generalized invocation are enough to presume the presidential communication is privileged. How can you say that when all Ermita said is that the communication between Neri and Gloria Arroyo is privileged, and that divulging the information might damage our relations with China? So we just take the claim in its face value? It has also unnecessarily shifted the burden of proof to the one opposing the claim of privilege.

The danger here is that Arroyo, through her henchmen, can claim executive privilege when refusing to answer questions from ANY investigating body. All they have to do is to make a formal claim and a vague, generalized invocation of reasons for making that claim. This has the same effect as the way the House of Reprehensibles innoculate Arroyo every year from any valid impeachment attempt. This innoculation, though is semi-permanent. After all, the House has to innoculate its queen once a year; this decision stands, stands as a precedent until overturned by the Court.

Comments by Others

I only know one columnist who was very glad with the Supreme Court’s decision; unfortunately for Alex Magno, he writes for The Philippine Star, who does not maintain permanent URLs for its articles (read: goodluck looking for it). Anyway, I cannot remember his jubilant post, except for the word “slap.”

I will not be surprised if Belinda Cunanan also wrote one like that of Magno; unfortunately for her, I do not read her articles anymore. Oh, she has no reaction yet; her last column was about Egypt.

Ok, so let us begin with what lawyers have to say about this decision.

Former Chief Justice Artemio Panganiban disagrees with the decision; he thinks that the decision has “imprudently expanded executive privilege to cover wrongdoings.” And he called de Castro’s argument about US v. Nixon in context of criminal investigation is not same banana with Neri’s case as “convoluted.”

Noted constitutionalist Fr. Joaquin Bernas explored the ways the Neri petition could have been resolved. He wondered why the Court did not resort to an in camera session to see if the claim is valid. And noting how the oral argument went, Bernas was surprised the majority still ruled for Neri; he asked how did the majority came up with the ruling. His question was: “Was it fathomed by guesswork, as Puno suggested?” He says that it seems to be so.

Atty. Raul Pangalangan concentrated on de Castro’s convoluted argument (former Justice Panganiban’s word, not mine). He claims that the decision “tells the Senate to follow the rules tightly while letting the Executive and the Ombudsman twist, turn, and dishonor the rules they were sworn to uphold.”

Atty. Butch Dado weighed in on the issue early. The decision, he says, allows the Fortress to refuse from testifying and answering questions from future Senate hearings; and even if they appear, they can always invoke executive privilege. The only way now for the Senate to go on, aside from the Court overturning its own decision, is to have another suprise witness.

Abe Margallo dissects the decision, and asserts that the decision clipped the checks-and-balance mechanism granted by the Constitution to the legislature and infringed into the legislature’s power to legislate.

Dean Jorge Bocobo points out a false distinction in de Castro’s decision about the powers of legislation and oversight. Justice de Castro claims that the Senate investigation is an exercise of its oversight function and not in aid of legislation, and thus the Senate cannot compel executive officials to attend.

The Jester-in-Exile is bold enough to predict that 9-6 may yet turn into 0-15, if the Senate files a well-written, well-argued motion for reconsideration (perhaps using the Puno dissent as template). If the Senate fails to act, or see its ” co-equal status to be further emasculated” by the Fortress.

Soliloquyboy thinks the decision is “an example of the travesty our court is slowly becoming.”

The Circle is Complete

Of the nine who voted to grant the Neri petition, eight are appointees of Gloria Arroyo. One of them played golf with Neri. Another was a very recent appointee, who had not participated in the oral argument. One is a phone pal of a Cabinet member. If Newsbreak’s sources are to be believed (and Newsbreak turns out to be correct most of the times), the Fortress had lobbied hard to win.

For this year, nine justices will retire. By 2010, the entire Supreme Court will be composed by appointees by Arroyo, with one remaining – Puno. But what is one against 14?

The circle of damaged institutions is complete.

PS: Well, there is the Senate. But it is damaged goods, and there are well-known fence crossers amongst them.

On this series:

* The circle is complete: background
* The circle is complete: on executive privilege
* The circle is complete: on legislative power of investigation
* The circle is complete: historical overview of executive privilege
* The circle is complete: on presidential communications privilege
* The circle is complete: applying US v. Nixon to Neri v. Ermita
* The circle is complete: Puno finds in favor of the Senate