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Read it and weep
By mlq3 Posted in Daily Dose on March 25, 2008 195 Comments 7 min read
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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.

Meanwhile, an indication of where public opinion lies, is Arroyo trust, approval ratings down while Opposition senators top latest Pulse Asia survey.


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  1. Teka lang, di ba yung pag appoint ng SC justice ay dumadaan sa JBC at sa Commission on appointments? At may At may opposition members ang dalwang yan? Kung utang na loob din lang naman ang pag uusapan, hindi lang kay GMA may utang na loob ang mga nakupong justices pati na rin sa bumubuo ng JBC at commision on appointments.

    Kung may problem atayo sa mga naupong jusitices, bakit hindi tingnan kung may mali sa sistema nag pag aapoint. Mali at walang mang yayari dyan sa basta na lang finger point kay Gloria.

    I just can not buy this “GMA appointee” trick of the pathetic losers crowd everytime Gloria and her administration scored a legal victory in the SC . And DJB even suggested burning the SC?.

    Para sa akin kung may nakakaiyak man, eto yung mga over reactions through the comments made in this blog by the representatives pathetic loser crowds.

  2. nash,

    “I was just wondering if you were from the school of ‘pwede na yan’….”

    what mindanaoan said (3/26/08 12:02 am)

  3. Jeg,

    a judge who never heard a case can decide on it, relying on transcripts of stenographic notes and all documents submitted

    only a small percentage of SC cases are set for oral arguments. 95% of the time, cases are decided on documents and written arguments.

    whats not allowed is if a judge gets appointed to the next court level and reviews an appeal of his own decision

  4. a judge who never heard a case can decide on it, relying on transcripts of stenographic notes and all documents submitted

    Thanks, scalia. I was thinking about landmark cases. Cases that would set precedent that would be referred to in decisions for generations to come. Not your everyday run-of-the-mill cases, that is, not in the ‘95% of the time’. I was thinking if you had a profound sense of ethics, not just a technical sense of one, you’d want to have been there. You want to have captured all the nuances. It’s a judgement call of course. Im just saying I wouldve inhibited myself. It’s in bad taste to just show up and then offer your vote and everybody, including the body politic knows you voted on a landmark case based on transcripts, and that the body politic was watching you because you were a new appointee. (cough-cou-Brion-ough)

  5. Jeg,

    you’re reacting that way just because of how the verdict went.

    theres nothing wrong with relying on transcripts. and theres nothing unethical about it

    take note not one legal luminary raised a howl on that

    maybe to appease you, try to make a little research on judicial ethics and see if the concerned justice violated an ethics rule

    (besides, the vote of that concerned justice wasn’t a swing vote)

  6. Jeq, transcripts and documents are best. Objectivity is key. Supreme courts do not even need oral arguments from both sides, ideally speaking. They just need ALL the FACTS.

  7. rego,

    “I just can not buy this “GMA appointee” trick of the pathetic losers crowd everytime Gloria and her administration scored a legal victory in the SC . And DJB even suggested burning the SC?.”

    agreed. they sound like losing election candidates (“nadaya kami, di kami natalo!”)

    “Para sa akin kung may nakakaiyak man, eto yung mga over reactions through the comments made in this blog by the representatives pathetic loser crowds.”

    kaya matatawa na naman si benignO sa atin

  8. you’re reacting that way just because of how the verdict went.

    With all due respect, scalia, you have no idea why im reacting ‘that way’. But let me assure you that Im not traumatized by the verdict, if that’s what you mean. It was more or less expected. I would react ‘that way’ even if it went the other way and Brion voted in the minority. I’d still say, Anong ginagawa nya dun?

    take note not one legal luminary raised a howl on that

    Appeal to authority and beside the point. Bad taste isnt against the law, after all. Like I said, Im not after the technical ethics. Just the ordinary mundane delicadeza type. A matter of taste, and not of rules.

    BrianB: Jeq, transcripts and documents are best.

    A matter of judgement and taste. Landmark decision and al l. I prefer to have been there.

  9. kaya matatawa na naman si benignO sa atin

    If Im not mistaken, that’s the second time you have appealed to benny’s sense of humor, scalia. 😉

  10. “A matter of judgement and taste”

    JEQ, logic, not taste. Judgment is the consequence of logic in matters of taste. Or something like that. Ask Kant.

  11. is this readiness to call names, suspect ill motives, disparage, or whine loudly when things don’t go on one’s way a psychological condition or a tactic in argumentation and debate? i wonder what it’s called?

  12. Its not only that anthony, para bang end of teh world na for teh Phillipines. sobrang pagka OA talaga!

  13. Ask Kant, Brian? Haha. Id rather not. He’ll put me to sleep.

    JEQ, logic, not taste. Judgment is the consequence of logic in matters of taste.

    Logic, sure. That’s why I would rather have been there. I can’t ask the transcript a question and expect it to answer, right? I do not want to be limited to what my colleagues asked. What if in my opinion they failed to ask a crucial question? (And even if they didnt, taste dictates I shouldve been there for the orals. My taste at least.)

  14. According to the Bureau of Agricultural Statistics the country grows about 16-17M tons of paddy rice (palay).

    Out of that the country is able to mill approximately 9M+ tons. Domestic consumption is at 11M+

    Hence the yield of rice from palay planted and eventually harvested and milled is not sufficient. The reasons are a complex web of supply side bottlenecks.

    At the present level of prices everyone should be allowed to import not only the government.

    Government should direct cheap credit to all farmers big and small and give them access to cheaper inputs by making the NFA the prime wholesaler of inputs instead of traders. Buy up at least 30-40 percent of yields at farmgate prices that guarantee a suitable yield every harvest season. The bulk of palay planted/harvested in the country is still rain fed and limited to one planting season.

    Most people are ignorant of the fact that the BSP sets the price of credit in the country based on IMF dictates and not the needs of the domestic productive economy.

    The NFA is running a deficit of over Php 60 billion +. All there from years of importing rice and buying high and selling low. Someone has made a lot of money from this and it definitely was not the farmers.

    Shit, this business of entitlements again.

    If the government would like to put Joma out of business the perfect opportunity is coming around. Laissez Faire has been thoroughly discredited by the U.S. They are burning more corn in the U.S. all on the public dime. Using the effective tools of the market with proper government intervention at the weak points of the supply chain would be revolutionary.

    One can dream.

  15. rego, here:

    http://en.wikipedia.org/wiki/Judicial_and_Bar_Council

    no opposition members.

    background, here:

    http://jbc.supremecourt.gov.ph/history.php

    the congress has not had a say in appointments to the supreme court since the 1935 constitution was scrapped. fr. bernas, however, has proposed giving the power of confirmation to the senate exclusively:

    http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_id=82127

    in this column, bernas says the jbc is supposed to limit the choices of the president in making appointments to the supreme court, by limiting the choice to a pre-prepared list:

    http://services.inquirer.net/print/print.php?article_id=43405

    but he pointed out it depended on whether the jbc would take its job seriously or not.

    in 2006, though, bernas observed that the jbc has surrendered much of its independence to the president.

  16. scalia, you are aware that the legal luminaries are still busy reading the decision, the dissenting opinions, etc.?

  17. Manolo, i think many of them are still busy downloading from the website. It’s so slow…like waiting for 2010.

  18. mlq3,

    i was referring to the alleged impropriety on the part of a justice who voted, yet wasn’t present during oral arguments. the point of Jeg was that that concerned justice should have inhibited himself since he never heard the oral arguments. my view is there’s nothing unethical about it

  19. Jeg,

    “If Im not mistaken, that’s the second time you have appealed to benny’s sense of humor, scalia.”

    yes. why do we keep on giving our favorite Fil-Aussie reason to be amused?

  20. Jeg,

    I continue voting for Ramiele. But I jsut cant help but fall for David Cook after I heard his version of Hello, Eleanor Rigby and and lately Billie Jean. I think he is the most consistent among contestants so far.

  21. mindanaoan,

    “is this readiness to call names, suspect ill motives, disparage, or whine loudly when things don’t go on one’s way a psychological condition or a tactic in argumentation and debate? i wonder what it’s called?”

    let me try – its called human nature.

    to make it closer to home – its the Pinoy-losing-candidate-syndrome

  22. scalia,

    well, quite frankly delicadeza, like virginity, once lost is impossible to regain. even a surgical procedure to restory the hymen doesn’t really make one a virgin again.

    that being said, i suppose we have to make a distinction between outright prohibitions in law and regulations and tradition. certainly none of the justices broke the law, or violated regulations. did their participation violate the informal code of delicadeza? perhaps. nothing compeled justices corona and velasco to inhibit themselves and if people don’t like it, let them mount a revolution otherwise, they have security of tenure. was brion wrong to vote? not in terms of law or past practice, it seems. once appointed, he was entitled to participate in all pending cases. was it appropriate? who cares. if anyone disagrees let them mount a revolution.

    which is not to say those who find something wrong either with the decision or the participation of these justices will mount a revolution. or that i even think it will drive people to contemplating a revolution. but it does offer up another opportunity to reflect on that old saying that what’s legal isn’t necessarily what’s right.

    for now, a color of constitutionality remains the veneer on all things, comforting to the 2010 movement.

  23. that’s making a dangerous assumption -that there isn’t a basis for those who complain they were cheated.

  24. Manolo,

    Thanks for the very enteresting links. I really appreciate it.

    But that exactly is my point, kesa pag papaikayin nyo na lang ang mga tao, mas mabuting isama sa diskusyon yung pagtingin sa sistema. Pro active baga hindi reactive.

  25. rego iba lang ang perspektibo natin. sa aking pananaw hindi mo puwedeng paghatiin ang tao sa sistema, ang tao ang bumibigay o nagbabawas sa isang sistema. ang mga sistema ay gawa din ng tao, at ang nagdedesenyo ng mga sistema ay hindi mga diyos na nakakakita ng lahat. may mga tao na nakakaisip ng paraaan upang sirian ang isang sistema na may abilidad sa ganung bagay na di man lang naisip ng mga nagdesenyo na posible pala gawin ang ganun.

    kaya hindi natin puwedeng ipaghiwalay ang pagkulang ng isang sistema at ng mga taong kasama ng sistema. isang halimbawa. sinasabi nila na nagkaroon ng isang afp chief of staff na nagsimula ng bagong sistema ng paghahati-hati ng pera para sa mga unit ng afp. imbes na pilitin ang mga unit na pumila sa ghq, pinadala agad ng afp chief of staff na iyon ang mga salapi sa mga unit, bahala na sila. nung ginawa niya ito, medyo nabawasan ang hawak niya sa mga unit, ngunit, naging kontento ang mga unit kasi hindi na sila napilitang mang-langis sa afp cos. mas fair, kumbaga. mula noon, hindi na naibalik ng mga sumonod na afp cos ang dating sistema.

    madaling magsabi na pikon lang ang isang tao pag umangal siya. kelangan nating tanungin, eh baka naman dapat lang mapikon siya. may basehan ba ang kaniyang pagangal? pinagaralan ba niya yung problema, talaga bang dapat siyang mag ingay? o naiirita lang ba tayo sa ingay dahil eh yun pala, wala namang nakinig, walang kumilos -at iniisip natin tuloy na dahil walang naidulot kaagad ang ingay, bale wala lang pala yung ingay na yun. eh baka naman ang pagkukulang ay hindi sa panig nung nag ingay, kundi sa mga hindi kumibo nung narinig nila ang ingay. siyempre pwede rin naman naman na mahilig lang mag ingay yung taong iyon -eh maski naman ganun lang siya, eh paano naman kung may k siyang mag ingay sa panahong iyon?

    ngunit eh paano naman kung may taong nasagasaan, umiiyak, humihiyaw, at may tumulong at mayroong hindi: at tayo lamang ay nanood sa lahat ng naganap. puwede ba nating paghusgaan yung tumulong at yung hinde? depende siguro kung gaano kalayo tayo sa naganap.

  26. to manolo and the rest of those who say that the SC is a puppet:

    if your concept of delicadeza becomes the norm
    in deciding landmark SC cases.. and all of GMA’s
    appointed should inhibit on cases pertaining to
    ‘hot’ issues..

    wouldnt that make CJ Puno the sole
    decider of cases?

  27. Simony is when bishops fudge their pastoral in exchange for payolas.

    Si money is when 9 shamans lap up a shoddy term paper on executive privilege because of utang na loob.

    Thank God, we have a Puno.

  28. liam, again, pls. go back to the particular criticisms of particular justices and why their inhibition was proposed. no one ever proposed a blanket inhibition. for corona: it was because his wife signed a political manifesto for the president (andif she’d signed one against the president it would be the same argument); for velasco, because some questioned if he didn’t have a friendship with neri; others (not me) questioned the participation of other justices and it’s up to you to see if you agree or not (the justices obviously didn’t).

  29. In that case Manolo, judges should live lives of hermits, not marry or have children and break ties with friends and relatives.

  30. actually, brian, in the past justices of the supreme court tended to live quite secluded lives, at least until the 70s or 80s. they tended to be scholarly people, anyway, and so not fond of the social scene.

  31. And I’m not turning over. I just think it’ stupid betting on Neri anyway.

    We should learn from what happened to Erap. We threw everything under the sun at him, and they all stuck, even the unfair and irrelevant accussations, and what did we get from that… a spineless republic.

  32. mlq3,

    er, my exchanges with Jeg are strictly on the new justice who was still with the executive branch during the oral arguments on Neri’s petition

    not that i didnt appreciate your 3/26/08 2:05 pm comment

  33. mindanaoan,

    one more time:

    “is this readiness to call names, suspect ill motives, disparage, or whine loudly when things don’t go on one’s way a psychological condition or a tactic in argumentation and debate? i wonder what it’s called?”

    its called “doing a Marquez”

    yung mga di matanggap ang SC decision kay Neri are all “doing a Marquez”!

  34. The anti-Gloria group already has enough on their hands. Taking on the SC as well is a big, big mistake, and there’s no guarantee Neri will give the goods. Neri has his own supreme court and it is located inside his head (or heart).

    If we were wiser, we would’ve campaigned for the playing of Hello Garci to the general public and do our own distribution of the tapes ourselves.

  35. sa lahat na hindi matanggap ang SC decision kay Neri:

    you don’t need his further testimony! with the existing testimonies given in the circus, este Senate, it can be established that gloria gave the go-signal to the project despite Neri’s advice of Abalos’ bribery attempt

    ano ba kayo?!

  36. i am there manolo

    but if the justices were to always bow down to calls for inhibitions, it will always tilt the balance of justice towards ‘loud’ sentiments or popular opinion, which i think should not be the case. why did we painstakingly create the institutions and the processes in the first place when we are inclined to bring it down the moment it swings against our favor?

    the fact that it was the JBC who nominated the appointees, should erase any cloud of doubt as to the neutrality of each justice. remember, the JBC is composed of members as mandated in the Constitution, whose membership and nomination process is designed precisely to prevent partisan politics in miring the appointment of justices.

    if there is something wrong with the way the justices are chosen or nominated, let the blame fall on JBC, for it is they, in the first place, whom chosen the nominees. hey, why dont we blame the framers of that particular provision? was it bernas?

    what i am saying is, we are always quick to put motives on our SC Justices the moment some distant relative by consanguinity or affinity comes into light or by some seemingly serendipitous moment that a justice was seen with someone who has close ties to the palace.

    we should judge SC justices(how ironic) based on how they formulated their decisions, not on a purported link like the ‘web of life’ in ecology. because if we all will examine really closely, everyone shall have links to everyone.

    the decisions are published and the justices’ contentions are there, surely, we can hold them accountable if there is a blatant disregard for justice on their side.

  37. djb:

    Thanks you very much for the information about the washburnlaw website. I received your philippine commentary essay today and got the link to the website of the thesis of Mary Kreiner Ramirez titled: Whistleblower Protection: A Tale of Reform versus Power

  38. “is this readiness to call names, suspect ill motives, disparage, or whine loudly when things don’t go on one’s way a psychological condition or a tactic in argumentation and debate? i wonder what it’s called?”

    “doing a Marquez”

    by far this is the best definition and the best title for that tactic

  39. you don’t need [Neri’s] further testimony! with the existing testimonies given in the circus, este Senate, it can be established that gloria gave the go-signal to the project despite Neri’s advice of Abalos’ bribery attempt

    Tumpak! That’s enough for a case for betrayal of public trust.

    Puwede patawag si GMA and ask her about that radio interview where she said she knew there were anomalies with the project but decided to go ahead anyway. “Ekshecutive privilege, Mr. Chairman.”

  40. Liam:

    during the time of marcos, the jbc also nominated the SC appointees, yet it did not erase any cloud of doubt as to the neutrality of each justice. The Ilagan case is still so fresh in my mind. How they allow the jailing of the three lawyers for more than 17 days on the basis of Marcos’ PDA directing their detention. Notwithstanding the SC’s earlier decision, granting their temporary release for lack of evidence, which they turned around after several days.

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