Earning brownie points at Meralco’s expense

Members of the Government Service Insurance System should sue Winston Garcia for outright stupidity. And for acting against their best interest.

GSIS takes “contributions” from government employees every month, and GSIS invests these so that it can provide pension and death benefits to its members and their beneficiaries. GSIS holds a stake at the electricity distribution monopoly. A company declares dividends (in cash or stock) when a company has surplus earnings. So whenever Meralco declares dividends, the GSIS earns.

meralco logoThat is why I am astounded by Garcia’s complaint that the Meralco rates are high, and that Meralco is overcharging its customers. See news reports here (ABS-CBN), here (GMA), and here (PDI).

As general manager of GSIS, Garcia’s primary concern should be the money of its members. His main tasks are to ensure that the members’ funds are in good hands, invest these funds soundly, and pay benefits on time. In short, he works for the interests of GSIS members. Isn’t it for the best interests of GSIS members if Meralco pays high dividends? Will it not benefit GSIS members if there is a large return on investment (ROI)?

As a member of Meralco’s Board of Directors, Garcia has a say on Meralco’s direction. And if he claims that the government owns 35% of Meralco, they why did he and other government directors allow Meralco to operate as it is operating now? And if he claims that Meralco is deliberately witholding documents from him, why can’t he just oust the current management team instead of saber rattling in the media?

I don’t think his comparison between Meralco and VECO should even be given credence. Unless he can prove that Meralco and VECO are both apples, the comparison is unfair. Besides, who owns VECO? Read this:

VECO is owned and managed by the Aboitiz and Garcia families of Cebu.

And Winston is part of that Garcia families. So there.

I agree that electricity rates are high. There are many factors to consider why we have high rates, and one of them is the high cost of crude oil. To that, we can’t do anything; it’s market forces at work. Also, your electricity bill includes VAT. So technically, you are being VATed several times on just one bill: oil is subject to VAT, electricity is subject to VAT, even systems loss is subject to VAT.

And there, this regime can do something, but it won’t. It can reduce the VAT rate to 10%, but it won’t. Because the finances of this regime depends on the taxes that we all pay. So it wants Meralco to lower its rates; I suggest that this regime instead revert the VAT rate for oil and power to 10%. Asa pa ko.

What the regime did was to lower Napocor’s rates. Did you know why we had RVAT? The law that slapped us 12% tax on almost everything we buy? Back in 2004, as par of her win-at-all-costs strategy, Gloria Arroyo lowered Napocor’s rates. The net effect was ballooning of Napocor’s debts, most of which were guaranteed by the government. It brought about budget deficit, and to cover such deficit, we got 12% VAT. Currently, Napocor’s debt is worth half a trillion pesos, which we poor Pinoys are paying through our taxes. And lowering such rates will not help easing that debt. Short-term, we might have a lower electricity bill, but long-term, we are burying three generations of Pinoys in debt.

Meralco should instead counter the regime’s propaganda with transparency. Open its books without reservation and qualification. If it has nothing to hide, it should have nothing to fear. But wait. The truth shall not set you free here in this country. Just ask all of those whistleblowers out there.

I suggest you read Tongue In, Anew’s Meralco v. Mafia for a technical background on Meralco’s current political woes. It should also give you some insight on the regime’s (and its factotums Garcia, Ermita, Bunye, etc) possible motivation for attacking Meralco.


To blog is to influence

The Marocharim Experiment wrote about resistance and blogging, and the seeming disinterest by most bloggers to post political commentary on their blogs.

He said:

Please disagree with me on this one: I think – and this is a completely subjective and personal observation – that most bloggers do not utilize their blogs enough as a vehicle to (at the very least) exact a political influence among their peers. It’s not that people don’t see the importance of political blogging, it’s just that people do not exercise their political views and commit them to a blog entry.

First, we cannot control what bloggers would post in their blogs. As someone who dabbles in political commentary myself, I always rant offline (and sometimes online, too) about the seeming apathy by the majority over the major political and social issues of the day. I have learned (and continue to learn) that diversity governs the blogosphere, and that diversity allows for apathy. I could be so intolerant of people who shrugs off politics (there’s a post by someone about being turned off by the political discussion part of iBlog 4 and all I could say via Twitter was “Tsk”), but what could I do?

Bloggers are within their rights to post what they want. It may be frustrating on the part of a political blogger, but what can he do?

Second, while we could not control what bloggers would say, we could influence others to think about political and social issues, to talk about them, and to post about them. We do this by presenting the issues, why they are issues, and why these issues matter to them. We do this by explaining what would happen if they continue to be indifferent.

Third, my pet peeve: taking a neutral stance all because a person is lazy or refuses to think. It is so easy to say “I am neutral;” it becomes harder when you are asked to explain your stand. Then things crumble after that. You will then find out that the neutral stance was just an excuse not to participate in the political/social discussion – an escape from one’s duty to take part in governance. As a political blogger, you can engage people into a meaningful discussion, listen to their reasons, point out their mistakes, convince them that they need to participate.

So, despite the seeming indifference, if you believe in your cause, you push it, you continue discussing and explaining, you write again and again, you beat the horse till it is dead. It might be easy to just surrender, but that would not make you any different from the others, right?


Sumilao, Calatagan, and social justice in the Philippines

It’s been weeks since the Sumilao land case has been satisfactorily resolved (hopefully), we have another, almost similar case under the radar screens of mainstream media and the blogosphere.

This time it is a 508-hectare property at Calatagan in Batangas owned by the late Ceferino Ascue. The land was put under agrarian reform in 1990, two years after the Comprehensive Agrarian Reform Law was enacted. The land was distributed to 318 tenant-farmers under the Operation Land Transfer (OLT) provision of Presidential Decree 27; 818 Emancipation Patents were distributed.

The farmers tilled the land and cultivated rice, corn, vegetables and other crops for the ten years, paying land amortizations to the government.

Five years (1995) after the land was put under agrarian reform, the heirs of Ascue sold the property to Asturias Industries (sounds familiar?). Not only did the heirs ignored that fact that they no longer owned the land at time of sale, the Register of Deeds of Batangas did not annotate the distribution of that land in the land title.

Asturias Industries then began its campaign to get the land. It applied for a Mineral Production Sharing Agreement (MPSA) and an Environmental Compliance Certificate (ECC) from the Department of Environment and Natural Resources (DENR) for a 2336.8-hectare land including the Ascue Estate in July 1997.

Asturias used those documents to question the distribution of the Ascue Estate under PD 27, claiming that the distribution was made erroneously, since the land was never used for planting rice and corn, and that Ascue did not recognize any tenancy arrangements.

The Provincial Agrarian Reform Officer (PARO) of the Department of Agrarian Reform (DAR) began its investigation of Asturias’ complaints. Task Force Baha was formed, and it found that “(1) procedural lapses attended the OLT coverage; (2)significant portions of the OLT-covered area were planted to sugar cane; and (3) the landowner did not recognize tenancy relations with the ARBs (agrarian reform beneficiaries).” A validating team from DAR Region IV Office noted that “it cannot be established beyond reasonable doubt that the property is planted to palay or corn and tenanted.” It then recommended the nullification of the emancipation patents.

DAR Undersecretary Conrado Navarro sustained Asturias’ complaints in August 4, 2000, basing his decision on the following:

(1) the landholding was not primarily devoted to the production of rice or corn;

(2) the tenancy relations was not clearly established and

(3) the land long ceased to be agricultural as it is “mineralized.”

This case was appealed to the Office of the President, the Court of the Appeals, and the Supreme Court. The SC upheld the DAR decision in 2005.

Everything that went for Asturias were legal. But were they right?

Social justice is a curious concept, an alien one to most of us Filipinos. It is almost utopian: fair treatment to everyone, and impartial sharing in the benefits and resources of the society. I myself can’t explain it with confidence and conviction.

That said, agrarian reform is a pillar of Philippine social justice as part of the provisions of the Charter (see Article XIII, Section 1). As always, the spirit of the law doesn’t matter; as long as we can get away from it, we twist the law to our advantage. It has become apparent that you can actually use the law to give some semblance of legality to what is morally wrong (going against the spirit of the law).

Having said that, what can I say about the Calatagan case? I just find it ironic that we are having a so-called rice crisis now, and 500 hectares of agricultural land became mineral land in a poof. Also, every thing that Asturias did were legal. But were they right?

Read a briefing on this case here.


Resisting tunnel vision

There has been ongoing debates on what to do with regards to the current situation in the Philippines.

A certain portion of the population (25% of the population, assuming that 50% is against Gloria Arroyo, and 25% supports her with open hearts and empty stomachs), I believe, thinks that it is better to look ahead instead of dwelling in the now. And within that 25%, there is a call to stop the current forms of resistance (resistance is futile and inconveniences everyone) and instead channel all energies towards the 2010 elections.

Some of the current “proposals” suffer from tunnel vision, I’m afraid. In medicine, tunnel vision refers to the failure of an individual’s peripheral vision. It means that a person can only see directly ahead.

In this case, tunnel vision refers to man’s propensity to look ahead without regards to the past and the now. Specifically, the propensity of some people to ignore or dismiss the present (and the past) and instead plan ahead so that what is happening now will never happen again. There is nothing wrong with that; I think it is good thinking, to think of what needs to be done to correct the current mistakes.

However, what I am totally against is tunnel vision, and for several reasons.

One, ignoring the current situation means allowing injustice to proceed without hitches. When things could be better and are not due to incompetence, wanton disregard of laws and rules, or just plain apathy to the common good, not doing anything is being complicit to the injustice of the situation.

Two, planning for the future generation is well and good, but what about the present? Sure, planning for the future generation is well and good, but that would be useless when the present has all but destroyed the things that the future would need. With widespread land conversion (to escape agrarian reform or to increase taxes on land) and deforestation, for example, what planning can save the future if we don’t stop the plunder now?

Three, what happens today has a direct effect on what will happen tomorrow. If we want to ensure that tomorrow will be better, we attend to the present. We continue what we think is good, and correct what we think is wrong. After correcting what is wrong, then we plan so that it will never happen again.

Lastly, if there is a fire, you put it out, you don’t plan on how to put it out, you just put it out. Right?

I am all for planning for the future. What I am against is the thinking that we should just plan ahead instead of dealing with the present. It is short sighted and detrimental to the common good and to the future.

Is resistance futile? No, unless we surrender to the current situation and instead hope for the best.

Why should we resist? We resist because injustice needs to be fought. We resist because it is our duty to correct our government from its their excesses. We resist because we have to preserve what we have. We resist because we have to preserve what we have for the future.

This is a DigitalFilipino.com Club sponsored post for Budget Hotels in the Philippines.


For a do-not-call law

We really need a do-not-call law here in the Philippines.

This do-not-call law covers unsolicited commercial phone calls, text messages, and email messages on personal or work phones, mobile phones, or email addresses. There shall be a national database of phone numbers and email addresses, to be maintained by the Department of Trade, and accessible by businesses so that they will not call, text, or email the said numbers and addresses.

The telecommunications carriers shall be required to issue phones with caller ID capabilities (and if possible, recording capabilities as well). This is to make sure that call recipients can take note of calls, specially when the call is unsolicited and commercial in nature.

Unsolicited calls/text/email refer to calls made by an entity to a person to offer loans, credit cards, jobs, or other promotions that are not sought for by that person; asking for donations and other forms of charity are also included. Calls made for verification purposes (like for valid credit card and loan applications) are considered solicited and as such should not be covered by this proposed law.

Heaven knows how many man-minutes, electricity charges, and bandwidth are wasted by these unsolicited calls. They can also be annoying. Aside from that, these unsolicited calls are violations of privacy.

And oh, selling databases of contact details should be outlawed, too – violation of privacy.

I had a post about my annoyance with these unsolicited calls. Have you received unsolicited calls before? Do you think we should have a do-not-call law?


The 2008 Philippine rice crisis?

The current issue about rice is troubling.

My mom usually buys about 10 kilos of rice every week (feeding six, five of them boys, excluding visitors; add one if my older brother comes home;). A month ago, she got this variety of rice for Php 26 a kilo. The same variety now costs Php 34 per kilo. The price keeps on increasing by a peso per week, she told me last night.

Simple law of supply and demand tells us that there will be a price increase when demand is high and supply is low. The Arroyo administration claims that there is no supply problem, that there is ample supply of rice. Yet, a month ago, the Secretary of Agriculture, Arthur Yap told restaurants and fastfood chains to serve rice in half of the usual serving. Why serve half-rice if the supply is sufficient?

After several months of dilly-dallying on whether there is a rice crisis or not, the Arroyo regime began a crackdown on alleged rice hoarders. Despite these high-profile raids, the price of commercial rice continues to shoot up, and there is no end in sight for such increases. And legitimate rice traders are threatening to go on a rice holiday if the raids (that they consider as indiscriminate) continue.

The regime has yet to define its parameters for raiding rice warehouses. I mean, how many cavans of rice must a warehouse contain to consider it hoarding?

Also, the rice being sold by the National Food Authority is a bestseller nowadays. Let’s face it: life is hard nowadays, and even some of the middle class buy NFA rice to save.

The administration must show why are these things happening right now. If there is ample supply, the price increase should be not that substantial. But its actions betray the problem: asking Vietnam for assurances of supply, importing from the US, asking restaurants for half-rice servings.

If things come to an explosion, this regime has no one to blame but itself. Too bad transparency has never been one of its virtues.

Do you think there is a rice crisis?

This is a DigitalFilipino.com Club sponsored post for resume maker.


The usual excuses

I am listing here the usual sh*t that Gloria Arroyo apologists/fans/supporters mouth when the topic of her removal/resignation comes up. I am including my sh*ttake on these lines, of course.

There is no alternative.

The problem with people mouthing this argument is that if you say a name, they will say that person is not an alternative. They will mouth everything negative about the person, even if they don’t have an iota of knowledge about that person’s competence. Heck, push for their moms and they will say their moms are not good alternatives. In short, there is no alternative, period.

Aside: I don’t know if Noli de Castro is being stupid or what. Fidel Ramos usually mouths “there is no alternative” when the topic of Arroyo’s removal comes up (because he thinks he is the alternative). That was an insult, and de Castro takes it in stride. What he doesn’t know is that he was chosen as Arroyo’s running mate precisely for that reason: so that people will have second thoughts removing Arroyo. Effective, no?

This excuse is very convenient. It allows a person to move on, as if nothing happened, as if nothing is happening. Apathy is just a form of laziness, a failure of one’s power of imagination.

Let the courts decide.

Those who are mouthing this statement – a known Fortress propaganda line – have little knowledge about how our justice system works. Before you can even get to the courts, you have to pass by Arroyo’s gatekeepers – the Department of Justice, headed by Raul Gonzalez; and the Office of the Ombudsman, headed by Merceditas Gutierrez. Just look at how these two organizations work. Heck, just look at how the two think.

The courts can only decide if these two organizations want them to. Good luck.

And when some people took the propaganda line and filed cases at the Ombudsman, the Fortress cried harassment, that they should let the Senate finish its hearings first – the very same investigation that they had successfully sabotaged and clamped down, no thanks to 9-6.

Which leads us to the next.

Let the institutions do their job.

A variation of the previous statement, people mouthing this line assumes that our institutions work.

Just look at the impeachment process. Speaker Prospero Nograles once claimed that an impeachment is a numbers game. Meaning, however substantial your complaint is, even if you have truckloads of evidence, you lose if you do not have the numbers. Yes, there is a semblance that the impeachment process works, and if the complaint is shot down, sorry, don’t be a sore loser. But given that case, does it really work?

The Constitution gives the power of initiating impeachment – a legal proceeding – to the House of Representatives, a political organization. The Charter assumes that congressmen can discern the grain from the chaff, to vote based on evidence instead of affiliation. For the past three impeachment attempts, do you think those congressmen voted according to their consciences?

No, they have not, because they have allowed the process to be mutilated by the Lozanos and the Pulidos of the world. By allowing so, they can assuage their consciences because they knew the Lozanos and the Pulidos filed weak complaints. And that is precisely why the process was mutilated.

And that is just the impeachment process. Don’t get me started on the Ombudsman, who sat on complaints against Mike Arroyo and Ben Abalos, re: NBN-ZTE; whose deputy made hysterics on an official hearing, all because he lied; who decided not to investigate Gloria Arroyo.

Yes, let us allow the institutions to do their thing – if they actually work as specified. I contend that they are not – they are all damaged institutions.

Her term is until 2010, let her finish her term.

The most recent mouthing of this line is from a bishop of Tarlac. My question is: so what? Joseph Estrada’s term was until 2004, but you bishops did not think about that. Instead, you called on him to resign, and when he did not, you called on people to go to EDSA.

How time flies. Now we see bishops calling on people to let Gloria Arroyo finish her term, even with all the coverups. What had happened to “the truth shall set you free” maxim?

And this is what galls me regarding these bishops. In 2005, when Hello, Garci erupted, Arroyo said sorry for calling an unnamed election official, and Virgilio Garcillano ran away and hid, the bishops called for a truth commission. Arroyo did not indulge them, and the bishops DID NOTHING. Not only that. They claimed that the impeachment is not the proper forum in searching for the truth. They also supported the calibrated pre-emptive response.

The coverups are blatant, and these bishops chose to look the other way. (I am hesitant to say that their eyes are covered by cash-filled envelops, lest I be accused of being holier-than-thou.)

All of us are corrupt.

This is one argument coming from the mouths of bishops. I thought seminarians were being taught logic in the seminaries. I am mistaken.

If everyone is corrupt, then these bishops are corrupt, too (and no, don’t ask me to use Venn diagrams). And to remind these bishops, you have a teaching, right? Judge not, and the mote in the eye thing?

And this goes for those who are now lambasting Oscar Cruz. All I can say is: look who’s talking?

Going back, if everyone is corrupt, it does not follow that we just allow Arroyo to continue doing crimes and covering them up. We might just as well dispense with our laws.

Our economy will take a hit if she resigns/removed.

This is the favorite bogey by her businessmen-fans. Their argument is that our economy will be affected if she resigns or is removed. They mouth the Fortress’ magic number 7.3%, and that we cannot afford to jeopardize our economic growth.

This is the easiest argument to debunk. On separate instances, I challenged Donald Dee and Jesus Arranza (known Gloria Arroyo supporters) and their organizations to unilaterally increase the minimum wage by Php 200 – not that Php 60 that the Arroyo-supporting TUCP is proposing. Of course, they won’t. So much for economic growth.

And their refusal belies the economic growth propaganda line. For if the economy is really growing, surely companies can afford to increase the minimum wage? Either they are too greedy, or the supposed economic growth is a sham.

If you have/know more excuses, please leave them at the comments.

(PS: This post should clear up doubts about my stand caused by the previous one.)


The circle is complete


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


The circle is complete: Puno finds in favor of the Senate


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.


The circle is complete: applying US v. Nixon to Neri v. Ermita


After discussing the historical overview of executive privilege, expounding on presidential communication privilege, and examining US v. Nixon at length, Chief Justice Reynato Puno applied all of these in resolving the petition file by Romulo Neri.

Diplomatic, Military, National Security Secrets Privilege is Invoked

In the petition, Executive Secretary Eduardo Ermita specifically and categorically invoked the presidential communications privilege. For good measure, he added the bogey that disclosure would impair our country’s diplomatic relations with China. Revisiting his letter, Ermita said:

The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the President, he (Secretary Neri) cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.

Almonte v. Vasquez and Chavez v. PCGG acknowledge executive privilege in terms of state secrets: military, diplomatic, and national security concerns. US v. Reynolds outlined the procedure on how to invoke and assess the validity of the invocation of the military secrets privilege, which Puno believes can be used in diplomatic secrets privilege. This case holds that there must be a formal claim of executive privilege, done by the head of a department that has control over the material. The role of the court is to determine whether the circumstances are appropriate for the claim, without disclosing the very material that the privilege is designed to protect.

The officer invoking the claim must satisfy the court that there is reasonable danger that disclosure will expose military matters, which should not be divulged in the interest of national security.

Puno contends that the Court cannot assess the validity of the claim by Ermita that disclosure may impair relations with China. Ermita only made an assertion and no explanation was given on how diplomatic secrets will be exposed if Neri answers the three questions. In the oral arguments, Neri’s counsel failed to explain how diplomatic secrets will be exposed if Neri answers the three questions. The Court therefore cannot determine whether there is reasonable danger that diplomatic secrets will be revealed if Neri answered the three questions. He said, “The Court cannot engage in guesswork in resolving this important issue.” (Which the majority did, anyway.)

Neri also claimed executive privilege on the grounds that his conversation with Gloria Arroyo dealt with national security matters. Further, in his reply to the Senate’s show cause order, he attached a letter by Atty. Antonio Bautista, who added more reasons: Neri’s “conversations with the President dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines.” But Neri did not use the term “national security,” instead he used “military affairs.”

Senate v. Ermita ruled that only the President or the Executive Secretary, by order of the President, can claim executive privilege. Neri, by himself or through counsel, cannot expand the grounds invoked by Gloria Arroyo through Ermita. Thus, the grounds aside from what are claimed by Ermita are invalid.

Arguing that Neri can invoke other grounds aside from that claimed by Ermita, he still failed to provide the Court information so that the Court can determine whether there is reasonable danger that national security secrets would be divulged if Neri answers the three questions.

Again, in oral argument, Neri’s counsel (Neri did not attend the oral argument) claimed that the basis for the claim includes diplomatic, military, and national security secrets, but these were arguments by Neri’s counsel; it did not satisfy the requirement that US v. Reynolds required: “formal claim of privilege lodged by the head of the department which has control over the matter after actual personal consideration by that officer.” (From how I read this, it should be Arroyo or Ermita who should justify the claim.)

Puno’s last say on this: “Needless to state, the diplomatic, military or national security privilege claimed by the petitioner has no leg to stand on.”

Presidential Communications Privilege is Invoked

Puno emphasizes that while the presidential communications privilege should be respected, it is not to be used for personal benefit of the President, and that this privilege should be “for the benefit of the public, not of executives who may happen to then hold office.”

The rationale for this privilege, as stated in US v. Nixon, is based on (1) common sense and (2) on the principle that flows from the enumerated powers of the President and the doctrine of separation of powers under the Constitution. Both of these were recognized in Almonte v. Vasquez and Chavez v. PCGG.

Note, however, the US v. Nixon is a criminal case. Neri’s petition involves the executive and the legislative. (Justice de Castro used this argument to grant Neri’s petition using her context test:

Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.


Puno contends, however, that the tension of power between the executive and the legislature must be resolved using the function impairment test. In this test, the Court must balance whether the disclosure impairs the President’s ability to perform here duty more than non-disclosure would impair the Senate’s ability to perform their duty.

Starting the function impairment test, Puno recognizes that presidential communications are presumed to be privileged. The Senate contends that Neri has the burden of overcoming the presumption against executive privilege, citing Senate v. Ermita. However, based on US v. Nixon, the privilege is presumed – the burden of overcoming executive privilege is on the Senate.

So, recognizing that presidential communications are presumed to be privileged, the Court should determine the strength of the presumption. Puno contends that the “stronger the presumption, the greater the demonstrable need required to overcome the presumption; conversely, the weaker the presumption, the less the demonstrable need required to overcome the presumption.”

Puno states that to determine the strength of the presumption, the Court has to look where the Charter committed the power in question. In US v. Nixon, the presidential communications privilege rest on the President. Therefore, the more concentrated the power is in the President, the stronger the presumption; the more shared or diffused the power is with other branches or agencies of government, the weaker the presumption. This contention by Puno is important when reading his next assertion.

The subject of the Senate inquiry (where Neri was a witness) is a foreign loan agreement contracted by the President with China. The power of the President to contract or guarantee foreign loans is shared with the Bangko Sentral ng Pilipinas through the Money Board. Witness Article VII, Section 20 of the Constitution:

Sec. 20. The president may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law. The Monetary Board shall, within thirty days from the end of every quarter of the calendar year, submit to the Congress a complete report of its decisions on applications for loans to be contracted or guaranteed by the Government or government-controlled corporations which would have the effect of increasing the foreign debt, and containing other matters as may be provided by law.

Corollary to that, Article XII, Section 20 states that majority of the Board shall come from the private sector.

While Puno did not give a definite conclusion to this line of argument, from my own understanding, he is saying that since the subject matter of the Senate inquiry is about the NBN deal being a loan from a Chinese company, this power to contract a loan is shared with the Monetary Board. And since this power is shared, the presumption that Neri’s communication with Arroyo becomes weaker.

Puno outlined other factors to consider when determining the strength of the presumption: (1) time of disclosure, whether contemporaneous or open; (2) level of detail, whether full text or whole conversations or summaries; (3) audience, whether the general public or a select few; (4) certainty of disclosure, whether information is disclosed as a matter of course or upon request; (5) frequency of disclosure; and (6) form of disclosure, whether live testimony or recorded conversation or affidavit. The type of information is also considered, whether military, diplomatic, or national security matters.

After testing the strength of the presumption that presidential communications are privileged, Puno starts determining whether the Senate has proven that it needs the information to overcome the presumption in favor of executive privilege.

Using the evidentiary standard of need, the Senate needs to prove that the privileged information is relevant, admissible, and specific, as stated in US v. Nixon. However, Nixon is a criminal case, while the petition pertains to the Senate inquiry, which is not bound by the evidentiary standard.

The requirement in legislative inquiries is that the question seeking the withheld information must be pertinent. The rule of pertinency is upheld in Arnault:

a. The investigating committee has the power to require a witness to answer a question pertinent to that investigation.
b. Every question that is asked must be material or pertinent to the subject matter of the investigation.
c. The question’s materiality must be determined by its direct relation to the subject of the investigation, not by its indirect relation to any proposed or possible bills.
d. “The necessity or lack of necessity for legislative action and the form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question.”

Also, to satisfy the evidentiary need, it must be proven that “evidence is not available with due diligence elsewhere” or that the evidence is particularly and apparently useful.

To overcome the presumption of privilege, Puno asks if the question is pertinent and if information is available elsewhere.