PERTINENCE AND AVAILABILITY OF INFORMATION ELSEWHERE

In the previous installment, Chief Justice Reynato Puno discussed in his dissenting opinion on Neri v. Senate how to overcome the claims of executive privilege as stated in Romulo Neri’s petition: diplomatic, military, and national security secrets; and presidential communications privilege. He debunked the first claim, and began tackling the second one. Here is the continuation.

Is the Question Pertinent?

These are the three questions that Neri refused to answer:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being told about the alleged bribe?

Now, to test the pertinency of the questions to the subject of the Senate inquiry, Puno outlined the resolutions, titles of privilege speeches, and pending bills that give purpose to the legislative inquiry. I will not be quoting them here.

Puno asserts that the three questions are pertinent to the subject matter of the Senate inquiry. The questions have direct relation both to the subject of the inquiry and the pending bills.

The three questions are pertinent to at least three subject matters of the Senate investigation: (1) possible anomalies in the consummation of the NBN-ZTE Contract in relation to the Build-Operate-Transfer Law and other laws (P.S. Res. No. 127); (2) national security implications of awarding the NBN Project to ZTE, a foreign-owned corporation (P.S. Res. No. 129); and (3) legal and economic justification of the NBN Project (P.S. Res. No. 136). The said questions are also pertinent to pending legislation: (1) the subjection of international agreements involving funds for the procurement of infrastructure projects, goods and consulting services to Philippine procurement laws (Senate Bill No. 1793); (2) the imposition of safeguards in the contracting of loans classified under Official Development Assistance (Senate Bill No. 1794); and (3) the concurrence of the Senate in international and executive agreements (Senate Bill No. 1317).

Is the information available elsewhere?

Puno contends that there is no substitute for the information being sought from Neri. In the first question, the information cannot be effectively found anywhere, since it refers to the importance of the project to Gloria Arroyo. (P.S. Res. No. 136)

On the second question, the information being sought refer to the factors considered by Arroyo in opting for NBN to be done by ZTE via foreign loan. Neri testified that she preferred a no-loan, no-guarantee unsolicited Build-operate-transfer (BOT) project, which was offered by Amsterdam Holdings Inc. This information is not available elsewhere, as it needed in the inquiry on the legal and economic justification of the NBN project, possible violation of the BOT Law, and in crafting pending bills. (P.S. Res. No. 136, P.S. Res. No. 127, Senate Bill No. 1793, Senate Bill No. 1794)

On the third question, the information cannot be found elsewhere as stated in the previous to question. Puno contends that answers to the three questions cannot be found elsewhere – there is no effective substitute.

In oral argument, Neri’s counsel (he did not attend the said event) argued that the Senate’s motive in asking the three questions was to pin Gloria Arroyo as culpable for alleged anomalies regarding NBE-ZTE deal. Counsel claims that invoking executive privilege does not mean Arroyo is hiding any crime. Puno contends that the motive of senators is beyond the purview of the Court’s power of judicial review.

Puno then states: “So long as the questions are pertinent and there is no effective substitute for the information sought, the respondent Senate Committees should be deemed to have hurdled the evidentiary standards to prove the specific need for the information sought.” Besides, in Watkins vs. US, the motives “of members of congressional investigating committees will not vitiate an investigation instituted by a House of Congress if that assembly’s legislative purpose is being served by the work of the committee.”

The Balancing Test

After dealing with pertinency of the questions and availability of information, Puno begins the balancing test. The aim of the test is simple. If information is disclosed, would it impair the President’s ability to perform her duties? If the information is not disclosed, would it impair Congress’ ability to perform its functions? Which is greater? The balancing test should result in the way that promotes public interest.

Will nondisclosure seriously impair Senate’s performance of its constitutional function to legislate? The Senate asserts in its comment that “there is an urgent need for remedial legislation to regulate the obtention (sic) and negotiation of official development assisted (ODA) projects because these have become rich source of ‘commissions’ secretly pocketed by high executive officials.” Puno contends that without the information being sought, the Senate will be hard pressed in amending Government Procurement Reform Act and Official Development Assistance Act to enable Congress to plug the loopholes in these statutes, and that several Senate bills will be crafted based on that information.

In short, withholding the information prevents the Senate from crafting specific legislation based on facts and not speculation.

Will disclosure of information seriously impair the President’s ability to perform her duties? Puno quotes an exchange between him and Neri’s counsel, Atty. Bautista. In that exchange, Puno asked Bautista on how the disclosure would impair the President’s ability to perform her duties. Based on his answers, Puno asserts that the claim is based on a general claim of a chilling effect (Arbet: like if disclosed, Arroyo believes that any of her people can disclose what they had conversed); that the general claim is unsubstantiated by specific proofs. Bautista could only share his own impression and personal opinion.

This is how Puno resolved the balance test:

Summing it up, on one end of the balancing scale is the President’s generalized claim of confidentiality of her communications, and petitioner’s failure to justify a claim that his conversations with the President involve diplomatic, military and national security secrets. We accord Presidential communications a presumptive privilege but the strength of this privilege is weakened by the fact that the subject of the communication involves a contract with a foreign loan. The power to contract foreign loans is a power not exclusively vested in the President, but is shared with the Monetary Board (Central Bank). We also consider the chilling effect which may result from the disclosure of the information sought from petitioner Neri but the chilling effect is diminished by the nature of the information sought, which is narrow, limited as it is to the three assailed questions. We take judicial notice also of the fact that in a Senate inquiry, there are safeguards against an indiscriminate conduct of investigation.

On the other end of the balancing scale is the respondent Senate Committees’ specific and demonstrated need for the Presidential communications in reply to the three disputed questions. Indisputably, these questions are pertinent to the subject matter of their investigation, and there is no effective substitute for the information coming from a reply to these questions. In the absence of the information they seek, the Senate Committees’ function of intelligently enacting laws “to remedy what is called ‘dysfunctional procurement system of the government” and to possibly include “executive agreements for Senate concurrence” to prevent them from being used to circumvent the requirement of public bidding in the existing Government Procurement Reform Act cannot but be seriously impaired. With all these considerations factored into the equation, we have to strike the balance in favor of the respondent Senate Committees and compel petitioner Neri to answer the three disputed questions.

Puno agrees that executive privilege cannot be used to hide a wrongdoing, but it is “not the sword that would pierce the Presidential communications privilege.” Whether there was a wrongdoing or not, it should be proven in a proper forum; by showing a specific need the privilege would be pierced and only then one can discover if the privilege was used to hide a wrongdoing.