ABS-CBNNews Online (with SC rules Arroyo-Neri talks on NBN are secret ) and GMANews.tv (with It’s 9 vs 6: SC favors Neri’s plea vs ZTE probe – sources ) out scooped Inquirer.net on the Supreme Court’s decision on the Neri case. The GMANews.tv report boils down the case as follows:
Neri, who filed the suit in his capacity as former director of the National Economic Development Authority, claimed that the three questions posed to him during his first and only Senate appearance last year were privileged communications covered by the principle of executive privilege and which can only be divulged during an executive session.
The three questions are whether the President followed up the NBN-ZTE project with Neri; whether he was told by the President to prioritize the NBN-ZTE project; and whether the President told him to go ahead with the project after learning of the massive bribe offer.
Neri’s invocation of executive privilege on these questions had prompted senators to cite him for contempt. The Senate also issued an arrest warrant against Neri after he refused to attend the inquiry into the NBN-ZTE deal.
Inquirer.net’s report, SC: Neri can invoke executive privilege, summarizes the decision as follows:
Commission on Higher Education chairman Romulo Neri can invoke executive privilege and cannot be compelled to answer three questions the Senate feels is crucial to getting to the bottom of the scandal-tainted national broadband network (NBN) deal, the Supreme Court has ruled.
Voting 6-9, the justices also ruled that the Senate cannot cite Neri or anyone in contempt because the rules of procedure of the 14th Congress had not been published, Supreme Court spokesman Jose Midas Marquez said.
The breakdown (according ABS-CBNNews’s report), the ponente and the voting was as follows:
The majority ruling was penned by SC Associate Justice Teresita de Castro.
She was supported in her decision by Associate Justices Renato Corona, Minita Chico-Nazario, Presbitero Velasco, Antonio Nachura, Dante Tinga, Arturo Brion, Leonardo Quisumbing, and Ruben Reyes.
The six who dissented were: Chief Justice Reynato Puno; Associate Justices Antonio Carpio, Adolfo Azcuna, Conchita Carpio-Morales, Alicia Martinez, Consuelo Ynares-Santiago.
Associate Justice Ynares-Santiago was actually on leave during today’s deliberations, but she left her dissenting vote.
It’s interesting to note that the the ponente wasn’t Justice Velasco, as originally reported; and that the freshly-appointed Justice, Brion, voted -and in favor of the government. In his blog, lawyer Teddy Te, Vincula, has something to say about the voting:
There is an unsurprising lack of shame in Brion voting on a petition where he did not participate and where popular sentiment held that his appointment was precisely to forestall the effects of a Velasco inhibition. There is also an uncharacteristic lack of delicadeza in De Castro writing for the majority, where her appointment was clearly seen as a reward for convicting Estrada.
This vote, coming on the heels of the 10-4 vote in the Chavez decision, shows just how much headway the Gloria appointees are making in controlling the court. If she lasts until 2010, Gloria Arroyo would have appointed all but one of the Justices (Puno is the exception; but since she appointed Puno Chief Justice, technically she could be considered to have appointed all the Justices).
How’s that for separation of powers? Checks and balances, anyone?
Both parts of the decision, are possibly highly controversial. The reasons why can be gleaned from the March 10 column Fr. Joaquin Bernas wrote, Anatomy of a rejected compromise,
But from the way the Puno Court has been waging a campaign for the protection of rights through the writ of habeas corpus, the writ of amparo and the writ of habeas data, I should not see the Court as being willing to be an instrument for the enfeeblement of democratic institutions.
What then do I hope to see?
I hope to see witnesses coming forward when summoned as witnesses and answering questions asked and, where proper, claiming that the President has instructed them to claim executive privilege.
I hope to see such witnesses being required to elucidate on what privilege they are claiming and submitting such claim for judgment by the Court, if need be, in chambers.
I am confident that the Court will be able to examine the claims presented before it and sift what is truly privileged and what is an attempt to hide wrongdoing.
Among the roles of the judiciary is the exercise of the power of judicial review. The power is a two-edged sword. It can either legitimize or exorcise. Thus in the current controversy the Court will either legitimize the power of the Senate to compel a witness who refuses to heed a subpoena and in the process rebuff Neri and his superior’s resistance to the Senate; or it will legitimize Neri’s refusal to testify and in the process clip the power of the Senate to compel defiant witnesses.
The Senate had occasion in 1950 to detain an uncooperative witness in Arnault v. Nazareno. But in that case Arnault was already before the Senate.
The Neri case now is different. The Senate already had him the first time, but they let him go, and Neri now is saying “Catch me, if you can.” Will the Court help the Senate?
Apparently not. In his blog, Philippine Commentary was predicting a decision in favor of Neri, but doesn’t mince words as to the implications of such a decision:
I cannot imagine a more compleat and disastrous demolition of the Separtion of Powers and a curtailment of the Public’s Very Right to Know what their government is doing than this 9-6 decision of the Supreme Court. We are now under an effective Dictatorship of Judicial and Executive Privilege in which the principle of Checks and Balances is no more.
Philippine Commentary supports new legislation patterned after American whistleblower laws, for the following reasons as he explained iin a previous entry.
The decision hasn’t been published on line, yet, so it remains to be seen whether it will go down as one of those decisions that maintain “a color of constitutionality” but which ends up placing the high court in disrepute. For now, The Mount Balatucan Monitor may be premature but not necessarily wrong.
It all hinges on whether the Supremes have enabled executive privilege to help cover up crimes, something that past jurisprudence was held to forbid (see my columns, A color of constitutionality and It’s how you play the game). Up to today, it was a given that the ultimate veto on executive privilege was that in matters involving crimes, executive privilege couldn’t be invoked.
It will be interesting to see what the Supreme Court’s arguments in its decision will be. I understand that the decision is over 100 pages! Anyway, Phoenix Eyrie, Reloaded finds it interesting.
Here is the decision and the dissenting opinions: Index of G.R. No. 180643, Romulo L. Neri Vs. Senate Committee, et al.