Let’s start with Neri and executive privilege: A timeline courtesy of the PCIJ.
My column today is A color of constitutionality The Inquirer editorial today is In aid of transparency, My column was less enthusiastic than today’s editorial about the compromise offered by the Chief Justice: Fr. Joaquin Bernas, S.J. who, by all accounts, was coaching the legal team arguing the Senate case, wasn’t pleased, either, but tried to make the best of it in A case of delicate balancing -but all have been overtaken by events.
The problem is of course, something that came as a surprise yesterday evening: Senate rejects SC compromise on Neri.
(see also, Senate rejects compromise: Conditions set by SC seen as crippling legislature) I’ve been mulling over the reasons why the Senate decided to harden its position and rebuff the Supreme Court. I think the Senators decided they are operating from a position of strength, legally and politically speaking.
By all accounts, going into yesterday’s oral arguments, the Supreme Court was split, 7-7, on Neri’s petition. The effect of such a vote, if it had taken place, would have been to deny Neri his petition. However, revealing, in essence, a party-line vote would have discredited the Supreme Court, because it would have shown that even clearly significant cases are now reduced to which justice is loyal to the President, or not.
For that reason, it would have made sense for the Chief Justice to throw the ball back in the Senate’s court, hoping it would clarify the extent to which Neri intended to be obstructionist. The Palace, for its part, faced with a sure loss if the Supreme Court had voted, could also look forward to a reprieve, while Neri in the meantime could invoke executive privilege, get into trouble with the senators, and have the whole thing end up back in court.
By which time, a new Justice would have been appointed, thus further firming up the administration’s numbers in the high court.
The Senate, though, in rejecting the compromise offered by the Chief Justice, and which has therefore puts pressure back on the court. The Supreme Court can now proceed to drag its feet: SC needs time for final ruling on executive privilege.
Lawyer Teddy Te, for one, is happy over the Senate’s decision (see his blog, Vincula):
After nine hours of orals, the Supreme Court Chief Justice offers a compromise–perceived by Malacanang to be “solomonic”, which should already put you on guard–to the Senate: 1. Neri will testify at the Senate, 2. he will not be arrested anymore, 3. but the three questions he had invoked “executive privilege” against will not be asked anymore and will be considered asked, and 4. each and every time he invokes executive privilege, the issue will be tossed back to the Court.
My first reaction was that it was a “cop out” by the Court, after strong decisions on press freedom and showing strong resolve against EJK and ED with amparo and habeas data. Later on, after speaking with very reliable sources, it made sense–though I still didn’t agree with the compromise; my sources told me that the CJ and Justice Carpio felt outvoted by the Gloria people in the Court and feared a loss had they insisted on a decision–so to avoid a loss, the CJ offered the compromise. One step backward, two steps forward–was it Lenin who said this, or Tommy Manotoc? Yes, it made sense but it still left me with a bad taste in the mouth.
If the Senate approved the deal, Gloria wins, hands down and the Senate loses, big time. The power of the Senate to summon witnesses would be severely impaired and the dictator gets away with silence on the three questions that directly place the ZTE deal at her doorstep.
I am glad that the Senate FINALLY acquired a collective spine (did that include you, Joker?) and some collective sense of identity and history and said, “thanks, but no thanks.” I hope the SC addresses this issue and, despite the lifting of E0 464, rules that its invocation under those circumstances was not proper and that Neri SHOULD answer those 3 questions.
This explains, to my mind, why the Palace slams Senate’s ‘arrogance’ for rejecting SC proposal. The compromise could have hidden the party-line vote it had in the Supreme Court; and it bought that most precious of political commodities, time. But, since anything is possible, it could also happen that an irritated Supreme Court, piqued by the Senate’s rejection, could then simply decide in Neri’s favor.
In the meantime, returning to Fr. Bernas’ piece, some problems now arise:
If no compromise is reached, will the court require Neri to appear at the Senate? Neri has claimed that he has the right not to heed the Senate’s call.
Should the court require Neri to appear, it would mean that for the court, the current Senate inquiry is not one where President Gloria Macapagal-Arroyo may prevent a department secretary from appearing, as provided for in Article VI, Section 22 of the Constitution.
Rather, the court would be saying that the current Senate inquiry is one in aid of legislation under Article VI, Section 21.
In Senate v Ermita, the court said that only the President and justices of the Supreme Court are exempt from summonses to an investigation in aid of legislation. Neri is neither the President nor a justice of the Supreme Court.
Should Neri still refuse to appear, in effect he would be claiming a right analogous to the right of an accused against self-incrimination. An accused can completely refuse to take the witness stand.
But if Neri is required to appear, the court would be saying that his situation is more analogous to the right against self-incrimination of a witness who is not an accused.
A witness who is not an accused may raise the defense of right against self-incrimination only when an incriminating question is asked. He has no right to refuse to take the witness stand altogether.
By analogy, the court would be saying that Neri may raise the issue of executive privilege only when a question he deems to be against executive privilege is asked.
It should be remembered that executive privilege belongs to the President and to no one else. At most, it can be claimed by the executive secretary by express authority of the President.
Hence, Neri must be able to show that after prior consultation with the President, he was instructed to claim executive privilege.
Whereupon, following the teaching of Senate v Ermita and in accordance with the tenor of the questions posed by the justices on Tuesday, Neri will be asked what exactly he is seeking to hide behind executive privilege.
At this stage, and as already mentioned during the Tuesday hearing, it may become necessary for the court to examine in chambers the secret sought to be guarded by the executive for the purpose of determining whether indeed the matter can or should be legitimately kept from the eyes of the public.
After all, the Senate has to be properly informed if it is to legislate intelligently, and the public generally has a constitutional right to be informed of matters of public concern.
Moreover, as already admitted in the Tuesday hearing, criminal matters are not covered by executive privilege.
Meanwhile, the story behind this news item –Arroyo revokes EO 464 after meeting with religious leaders– I found out last night. No one was supposed to know the President was going to meet her allied bishops, particularly the ones from Mindanao, at the Discovery Suites. However, the media was tipped off and reporters camped out. This meant that attendees were observed coming and going. And that the President ended up making her announcement sooner than planned. Speaking of bishops, Patricio P. Diaz dissects recent statements by the Catholic hierarchy.
In the meantime, Senators also want Memorandum Circular 108 scrapped. Check out smoke’s comparison of E.O. 464 and M.C. 108.
When he does publish a book, it will a doozy. Read Lito Banayo’s growing feeling of Déjà vu. Meanwhile, the plot thickens: Arroyo not just witness at NBN-ZTE deal signing: and Another China contract missing.
And Gail Ilagan has some interesting observations concerning Lozada’s abduction.
Economic news: Poverty worsens between 2003 and 2006, according to the National Statistics Coordination Board. (see Poverty worsens despite growth and Poor Filipino families now number 4.7 million and More Filipinos below poverty line ) In his blog, [email protected] comments on the figures. In his column, Peter Wallace says that while government claimed 7.3 percent GDP growth last year, the real figure is about 4.8 percent growth. See also Inflation surges to 5.4% in February and NEDA expects to record growth slowdown in Q1.
How do foreign analysts go about determining risk in the Philippines? Read Forecast that Arroyo will survive has ‘large margin of error’ – analyst.
In the blogosphere, Phoenix Eyrie, Reloaded, is at the very least, ambivalent about opposition to the President. Spring Roll is confused by recent events. Mandaluyong High School says, let’s think positive. Splice and Dice thinks that the issues gives people a chance to seize the day. blackshama believes the old People Power is dead, long live whatever replaces it.
Observations from a Lowly Traveller is looking forward to migrating. Bayan ni Kabayan looks at the Neri chart.