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ADIVIDED Supreme Court is of two minds about
executive privilege but the majority has upheld the accepted
fundamentals. The ruling broke no new ground but it spelled out in
clearer terms the limits of congressional inquiry. It was a
reassurance to the President and the members of the Cabinet that
executive privilege, as defined by the Court, enjoys protection of
the law.
Voting 9-6, the Supreme Court
granted a petition of Romulo Neri, the acting chairman of the
Commission on Higher Education, to invoke executive privilege on his
conversation with President Gloria Macapagal Arroyo on the
short-lived $329-billion national broadband network with China’s
ZTE Corp.
At the Senate hearing on the
controversial project, Neri had informed the senators that he had a
conversation with the President on the subject when he was still
economic planning minister. The senators posed three questions that
the former NEDA boss declined to answer. The senators threatened
arrest if he failed to reply.
The lawmakers wanted to know if
the President followed up the broadband project with Neri; if she
told the NEDA chief to make the deal a priority; and if she ordered
him to carry out the activity after he informed her about an alleged
bribe offered by resigned Chairman Benjamin Abalos of the Commission
on Elections.
The Court decision weighed in
favor of the executive claim that disclosure of the withheld
information may impair diplomatic and economic relations with the
People’s Republic of China.
High-ranking senators, led by
Senate President Manuel Villar, Francis Pangilinan and Mar Roxas,
had argued the principle of executive privilege should not be
applied “to conceal the truth about an anomalous public
transaction.” They expressed disappointment over the ruling.
On another question, the Supremes
ruled that the Senate committed grave abuse of discretion when it
imposed sanctions on Neri because the chamber had no established
rules on meting punitive actions.
The Senate probe should—with
qualifications—continue. While the search for the truth must
proceed, it must set a deadline on its inquiry or run the risk of
conducting an inquisition with no end, or until investigation and
viewership fatigue sets in.
It may ask Neri to return but
under the rules set by the court. An executive session, it was
proposed, would be helpful. Most productive would be a decision from
Neri or the Palace to waive executive privilege in the national
interest.
What could console the Senate,
the political opposition and a segment of the public is that the
High Court could revisit the issue. We have heard from six justices
that the principle of executive privilege is not infallible and the
justifications for its invocation are flawed.
Chief Justice Reynato Puno
dissented from the majority. Associate Justice Arturo Brion, whose
vote was the subject of much speculation before his appointment,
took sides with the majority. We are running the opinion of the
Chief Justice and the other dissenters below.
Dissenting opinion
CLAIMS by CHED acting chairman
Neri that forcing him to answer the three critical questions from
the senators investigating the broadband deal would imperil
diplomatic relations with China are groundless, according to the
dissenting opinions raised by six associate justices led by Chief
Justice Puno.
The other Supremes who dissented
were Associate Justices Consuelo Ynares-Santiago, Antonio Carpio,
Conchita Carpio Morales, Adolfo Azcuna and Ma. Alicia
Austria-Martinez. We quote from the 120-page dissent of the Chief
Justice:
“. . . even assuming arguendo
that petitioner Neri can properly invoke the privilege covering
national security and military affairs, still, the records will show
that he failed to provide the Court knowledge of the circumstances
with which the Court can determine whether there is reasonable
danger that his answers to the three disputed questions would indeed
divulge secrets that would compromise our national security.
“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.
“As 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.
“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,” Justice Puno said.
Saying the Palace respects the
decision, Press Secretary Ignacio Bunye expressed hope that the
Senate and the Executive could work out “mutually acceptable rules
on appearances in Senate inquiries in aid of legislation that will
guarantee the rights of resource persons and parties affected by
congressional hearings, as stipulated by the Constitution.”
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