The President’s cheerleaders did their pom-pom dance, PCCI supports Supreme Court decision on executive privilege, as expected.
And if anyone has doubts, to borrow a phrase of Bautista the Hutt, that this decision has provided “comfort to Malacanang,” one only has to scan the headlines. Cabinet to skip Senate inquiries, while old problems now have a chance to be buried: Malacañang ‘open’ to Jocjoc extradition.
After all, if he comes home, where can he be made to talk? Not before the Senate, because Bolante can now invoke executive privilege. In court? He will live a long and untroubled life, then.
Meanwhile, RG Cruz has scuttlebutt on the latest rearranging of deck chairs on the Titanic:
Anyway, seems like a cabinet reshuffle will be in the offing in a few months. Esperon is said to be poised be new defense secretary, as gilbert teodoro moves to the justice department to replace a supposedly ailing raul gonzales. Puno is making the leap from DILG to Executive Secretary as Ermita flies off to Washington DC as the new Permanent envoy to that seat. Or so the grapevine says.
(some of these grapes are getting so long at the tooth, they’re the singing raisins of scuttebuttdom!)
But Edilberto C. De Jesus examines why the majority decision has the attributes of a Pyrrhic victory for the administration:
If the President did not ask Neri to follow up the NBN-ZTE project, did not ask him to favor it, and did not ask him to approve the deal, would she not have encouraged, indeed demanded, that Neri testify to these points, under oath, at the Senate hearing and all other available public fora? What we do know, however, is that the President, despite Neri’s report of the Abalos bribe attempt, did not immediately stop the implementation of the NBN-ZTE contract.
The President’s presence at the contract-signing in China actually rendered the three questions irrelevant. Whether Neri approved the project or not was immaterial. The President is the ultimate decision-maker in Neda; the buck stops where she sits. But a clear admission from Neri of presidential intervention in favor of NBN-ZTE would have allowed the senators to press forward with other questions.
For Neri to invoke executive privilege thus appears analogous to invoking the 5th Amendment to protect against self-incrimination. But the person in danger of being incriminated was the President, on whose behalf Neri claimed executive privilege. The move was defensive in nature; Neri avoided placing on the public record testimony that may be damaging to the President in any court of impeachment proceedings.
The Senate hearing could have served as the stage for Neri to declare clearly and categorically that the President did not intervene in any of the three ways indicated by the questions. Neri could thus have dramatized the President’s iron resolve to root out corruption.
Instead, it has demonstrated her iron resolve to implicate as many people and institutions as possible in her version of governance. Read an interview of PLDT’s Manuel Pangilinan, as reproduced in New Philippine Revolution, to get an idea as to why an administration victory in the Supreme Court can be hailed by the PCCI and underwhelm others. While others, still, are beyond being underwhelmed, they’re overwhelmed by what all the scandals imply. See Absolutely Beautiful‘s views.
Yesterday, former Chief Justice Artemio Panganiban, under whose watch Senate v. Ermita was decided, had this to say about the Supreme Court’s decision in Neri v. Senate. In his column, Arroyo Supreme Court? , he suggests the choice confronting the sitting Justices is a stark one: to be a puppet court, or not:
With due respect, I believe that the majority decision failed to check presidential abuse; worse, it imprudently expanded executive privilege to cover wrongdoings.
First, to justify Secretary Romulo Neri’s refusal to answer the three questions linking President Arroyo to the ZTE-NBN mess, the majority considered “conversations that take place in the President’s performance of (her) official duties… presumptively privileged.” It deemed the bare, proof-less claim of Executive Secretary Eduardo Ermita that Neri’s disclosures “might impair our diplomatic as well as economic relations” with China. It faulted the Senate with rank failure to explain a “critical or compelling need for the answers.”
By shifting the burden of proof to the Senate, the nine-member majority reversed the much-acclaimed “Senate vs Ermita,” issued just two years ago, that unanimously placed the duty of proving the need for secrecy on the president. Disclosure is the rule because the Constitution expressly mandates transparency and accountability for all officials.
Second, by giving the “presidential communications privilege” presumptive confidentiality, the majority inexplicably expanded kingly prerogatives. It unreasonably suppressed the truth.
Third, executive privilege is not expressly provided in the Constitution. There is no sentence or clause mentioning the privilege directly. The Supreme Court merely implied it from other presidential powers. In contrast, the power to investigate in aid of legislation is expressly granted by the Constitution to Congress. In a clash between these two prerogatives, the choice is clearly in favor of the express grant.
Fourth, the majority agreed with the Senate that executive privilege should not be used to hide a crime or wrongdoing. Well and good. Yet, it still ruled against disclosure on the convoluted argument that “US vs Nixon” involved a “pending criminal action,” while the Neri petition related to a “legislative inquiry.” As I see it, this American case is simply inapplicable. The majority should have relied on the constitutional mandate requiring transparency and accountability of officials.
In his column today, Fr. Joaquin Bernas, S.J. calls the majority opinion A dangerously crippling decision. Crippling of what? Institutions and institutional efforts, including recourse to the Writs of Habeas Corpus, or Habeas Data; and anti-corruption efforts, says Bernas:
The Court could have decided that Romulo Neri should answer the three questions pregnant with cloudy foreboding: (a) Whether the President followed up the NBN project; (b) Whether the President directed him to prioritize the ZTE; (c) Whether the President said to go ahead and approve the project after being told about the alleged bribe.
But the Court placed all three questions under executive privilege, and nothing derogatory to the woman, if there was any, as many thought, could come out…
The type of executive privilege claimed here is “presidential communication privilege.” Presidential communication is presumptively privileged; but the presumption is subject to rebuttal. Thus, whoever challenges it must show good and valid reasons related to the public welfare.
What reason did the Senate have? Recall that this was in the course of a legislative investigation occasioned by, among others, pending bills about foreign loans. The topic of foreign loans is special. It is not the sole domain of the President. Under our Constitution foreign loans may be incurred by the President but only with the prior consent of the Monetary Board and in accordance with laws passed by Congress. Hence the Senate had very good reason for finding out how the ZTE-NBN loans were handled and how the very unique experience under it which had attracted national interest could contribute to legislation.
When the claim of privilege is disputed by Congress, how and by whom is the dispute to be resolved? US decisions, strewn all over Justice Leonardo-De Castro’s ponencia, say that it is the Court that decides whether the claim of privilege has foundation.
That was the reason why the Court called for the oral argument on the subject. The Court wanted to find out, without compelling Neri to reveal legitimate secrets, how Neri’s answer might affect diplomatic relations and national security. As Chief Justice Puno observed, “The Court cannot engage in guesswork in resolving this important issue.”
Neri was not at the oral argument to explain. When his lawyer was asked to explain, Neri’s lawyer was clueless. His answer, repeated like a mantra, was “I cannot fathom.”
One might also add that, if there was any possible cause for impairment of diplomatic relations with China, one such possible cause would have been the cancellation of the contract. But no diplomatic problem arose from the cancellation.
The Court could have asked for an in camera session for Neri to explain his claim within the hearing of the Court alone. Such a procedure, followed by American practice, could have enabled the Court to sift what was privileged and what was not and then to allow the revelation of what was not privileged. But the Court did not use the procedure, probably because it was already obvious from the oral argument that the claim of privilege could not be sustained. It was, to paraphrase Neri’s lawyer, unfathomable.
But, lo and behold, the ponencia ruled that the matter was covered by executive privilege. Was it fathomed by guesswork, as Puno suggested? That is the way it looks to me.
The implication of this ponencia that shows no effort to look into the underlying substance of the claimed privilege is that once the claim of “presidential communication privilege” is claimed, no evidence is needed to support it even if there are legitimate reasons calling for disclosure. This would revolutionize the doctrine on executive privilege in a manner that can affect all other investigations. This can, for instance, hamper effective use of the recently promulgated writ of amparo and writ of habeas data. It can also cripple efforts to battle official corruption, which is a world-recognized specialty of the Philippines…
The case clearly calls for a reconsideration to give the Court a chance to clarify what doctrine of executive privilege it really wishes to establish.
Another Justice of the Supreme Court, Antonio Carpio, discusses The limits of executive privilege in his dissenting opinion; yet in Notes toward a circumspect ruling on executive privilege, Rep. Teodoro L. Locsin, Jr., as is his wont, takes contrarian view:
26. There is jurisprudence, and it is scant, that executive privilege may yield to the demands of criminal justice because of the superior stakes of real lives, liberties and properties but not to a generalized interest in whatever the Senate deems the truth of any matter that strikes its fancy. “The leading case prior to US v. Nixon was US v. Burr. There, Chief Justice Marshall, on circuit duty, had issued a subpoena duces tecum demanding of President Jefferson a letter thought by defense counsel to be relevant to the treason trial of Aaron Burr. Chief Justice Marshall declared: “The propriety of introducing any paper into a case, as testimony, must depend on the character of the paper, not on the character of the person who holds it.” [Tribe] Which is to say that in requesting for presidential privileged communications, the request must be framed on a more or less explicit description of the paper and its relevance to the proceeding where it is to be introduced. The proceedings in our case is a Senate investigation in aid of legislation and the relevance to be demonstrated is in relation to prospective legislation, which, of course, does not and cannot extend to a prosecution under that law which would smack of ex post facto. Jefferson sent the papers but, he stressed, of his own free will and not because of judicial compulsion.
27. Yet with the search for truth, except in the most generalized way, and the attainment of justice except in a rhetorical fashion, Congress can have nothing to do. By its partisan nature Congress cannot be objective nor impartial to the interests of its constituents and its own members – even in the stronger case when the House sits in impeachment as The Grand Inquest. In a political contest between the executive and the legislative branches, a judicial determination had best await the political outcome.
And he says the battle, right now, is not between the Senate as a whole and the Executive, but rather, parts of the whole versus the Executive; and that the burden of proof is on the Senate or its parts to justify not allowing a claim of executive privilege to hold; and he then argues why in his opinion the courts remain a superior venue to determining wrongdoing. All the Senate’s doing, he says, is engaging in a fishing expedition; and however laudable the aims, fishing expeditions are disallowed: if anyone is going to go fishing, it should be the House.
And he argues, further, that it is the House that is properly tasked with putting together a “Grand Inquest” versus the Chief Executive as the Senate’s charged with being the judge; but perhaps he overlooks the particular historical development of our Senate as a foil to the Chief Executive’s aggrandizing instincts. In essence he was asserting the prerogatives of the House to which he belongs, and a reasoned defense of the Executive, which he once served, in contrast to the Senate, with which he has traded barbs, and pointing out a possible, prudent resolution of the case on the part of the Supreme Court, by which he has often been exasperated. But his brief, it seems, was ignored; and what would really be interesting is what his opinion of the actual decision might be.
Anyway, Locsin does raise an interesting point in that he believes there are grounds for a case which would challenge the present rules of the House concerning impeachment, which results in “sham” impeachment complaints:
“The political efficacy of presidential assertions of executive privilege is perhaps most limited in the context of congressional impeachment proceedings. It would be a ‘mockery’ indeed, to quote John Quincy Adams, ‘to say that the House should have the power of impeachment extending even to the President…himself, and yet to say that the House had not the power to obtain the evidence and proofs on which their impeachment was based.’ The same could of course be said of the Senate’s power to try impeachments. Indeed, assertions of executive (or other) privilege that unjustifiably thwart impeachment investigations and trials can themselves quite properly become the basis for an article of impeachment.” [Laurence Tribe, American Constitutional Law 3rd Ed, 787.]
3. Which, by the way, shows that the House rules on impeachment disallowing continuing amendments of impeachment complaints are mentally dishonest and constitutionally infirm so that the Supreme Court should throw out what the former Speaker of the House himself disdained as “a sham complaint” filed for purposes of inoculating the President from the genuine article.
Meanwhile, even as More solons back access-to-information bill, the PCIJ publishes a report on its data-gathering (during the preparation of a three-part report on Overseas Development Assistance: see ODA surge sparks scandals for Arroyo, debt woes for RP, followed by Bids sans caps, tied loans favor foreign contractors and then finally, 7 in 10 ODA projects fail to deliver touted benefits ) and how it fared when trying to ferret out information from government agencies. As its introductory note says,
For about six months, the Philippine Center for Investigative Journalism (PCIJ) sought to uncover and scrutinize documents on projects funded with official development assistance (ODA). Our experience highlights the government’s snail-paced progress toward transparency, and full compliance with the Constitution’s provision on access to information.
The three-part series written for the PCIJ by Roel Landingin, senior correspondent of The Financial Times of London, reflects the reluctance by many government agencies to allow public access to documents that involve use of taxpayers’ money. The report published in February 2008 established that 7 in 10 ODA projects reviewed have failed to deliver their touted promise of economic benefits.
To support Landingin’s report, the PCIJ filed 23 written requests for documents with various government agencies. Only 15 were granted, for a 65 percent response rate, even as many of the agencies failed to provide all the data that PCIJ had asked for. The agencies who turned down the requests similarly invoked either the so-called confidential nature of the documents requested, or the seemingly catch-all excuse called “executive privilege.”
Go ahead and read Gov’t curbs access to information amid Senate scrutiny of projects.
Of course, this is all very inconvenient for those who’d rather focus on The fantasy of the 7.3-percent GDP growth, as Amando Doronila puts it.
What follows is a primer on Neri v. Senate and what it implies, prepared by Atty. Carlos Medina. The Watch, Pray and Act Movement and the Busina network will lead a mobilization to accompany legal counsels Chochoy Medina, Mel Sta. Maria, et. al. in the filing of a motion for reconsideration on April 8 at the Supreme Court. They will assemble at Adamson University on San Marcelino St. at 8 am and then proceed to the SC.
Primer on the Supreme Court Decision in Neri vs. Senate Committee and its Implications
In General:
What is the case of Neri vs. Senate Committee?
This case is about the Senate investigation of anomalies concerning the NBN-ZTE project. During the hearings, former NEDA head Romulo Neri refused to answer certain questions involving his conversations with President Arroyo on the ground they are covered by executive privilege. When the Senate cited him in contempt and ordered his arrest, Neri filed a case against the Senate with the Supreme Court. On March 25, 2008, the Supreme Court ruled in favor of Neri and upheld the claim of executive privilege.
What is “executive privilege”?
It is the right of the President and high-level executive branch officials to withhold information from Congress, the courts and the public. It is a privilege of confidentiality which applies to certain types of information of a sensitive character that would be against the public interest to disclose. Executive privilege is based on the constitution because it relates to the President’s effective discharge of executive powers. Its ultimate end is to promote public interest and no other.
Is executive privilege absolute?
No. Any claim of executive privilege must be weighed against other interests recognized by the constitution, like the state policy of full public disclosure of all transactions involving public interest, the right of the people to information on matters of public concern, the accountability of public officers, the power of legislative inquiry, and the judicial power to secure evidence in deciding cases.
Did the revocation by the President of E.O. 464 on March 6, 2008 diminish the concept of executive privilege?
No. Executive privilege may still be invoked despite the President’s revocation of E.O. 464 because it is based on the constitution.
On the Contents of the Supreme Court Decision:
What events led to the filing of the case before the Supreme Court?
On April 21, 2007, the DOTC and Zhing Xing Telecommunications Equipment (ZTE), a corporation owned by the People’s Republic of China, executed a “Contract for the Supply of Equipment and Services for the National Broadband Network Project” (NBN-ZTE Contract) worth US$329,481,290.00 (around PhP 16B). The project sought to provide landline, cellular and internet services in government offices nationwide and was to be financed through a loan by China to the Philippines. President Arroyo witnessed the contract signing in China.
After its signing, reports of anomalies concerning the project (e.g., bribery, “overpricing” by US$ 130M, “kickback commissions” involving top government officials, and loss of the contract) prompted the Senate, through the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce, and National Defense and Security, to conduct an inquiry in aid of legislation. The inquiry was based on a number of Senate resolutions and in connection with pending bills concerning funding in the procurement of government projects, contracting of loans as development assistance, and Senate concurrence to executive agreements.
In one of the hearings held on Sept. 26, 2007, former NEDA Director General Romulo Neri testified that President Arroyo initially gave instructions for the project to be undertaken on a Build-Operate-Transfer (BOT) arrangement so the government would not spend money for it, but eventually the project was awarded to ZTE with a government-to-government loan from China. He also said that then COMELEC Chairman Benjamin Abalos, the alleged broker in the project, offered him PhP 200M in exchange for NEDA’s approval of the project. Neri testified that when he told President Arroyo of the bribe offer, she told him not to accept it. But Neri refused to answer questions about what he and the President discussed after that, invoking executive privilege since they concerned his conversations with the President. The Senate required him to appear again and testify on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo Ermita wrote the Senate Committees and asked that Neri’s testimony on November 20, 2007 be dispensed with because he was invoking executive privilege “by Order of the President” specifically on the following questions:
a. Whether the President followed up on 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?
When Neri failed to appear on November 20, 2007, the Senate required him to show cause why he should not be cited in contempt. Neri explained that he thought the only remaining questions were those he claimed to be covered by executive privilege and that should there be new matters to be taken up, he asked that he be informed in advance of what else he needs to clarify so he could prepare himself.
On Dec. 7, 2007, Neri questioned the validity of the Senate’s show cause order before the Supreme Court. On January 30, 2008, the Senate cited Neri in contempt and ordered his arrest for his failure to appear in the Senate hearings. On February 1, 2008, Neri asked the Supreme Court to stop the Senate from implementing its contempt order, which the Court granted on Feb. 5, 2008. The Supreme Court also required the parties to observe the status quo prevailing before the issuance of the contempt order.
What reasons were given for the claim of executive privilege?
Executive Secretary Ermita said that “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.” Neri further added that his “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.”
What issues were considered by the Supreme Court in resolving the case?
The Supreme Court said there were two crucial questions at the core of the controversy:
a. Are the communications sought to be elicited by the three questions covered by executive privilege?
b. Did the Senate Committees commit grave abuse of discretion in citing Neri in contempt and ordering his arrest?
How did the Supreme Court resolve these issues?
The Supreme Court first recognized the power of Congress to conduct inquiries in aid of legislation. The Court said that the power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege.
On the first question, the Supreme Court said that the communications sought to be elicited by the three questions are covered by the presidential communications privilege, which is one type of executive privilege. Hence, the Senate cannot compel Neri to answer the three questions.
On the second question, the Supreme Court said that the Senate Committees committed grave abuse of discretion in citing Neri in contempt. Hence, the Senate order citing Neri in contempt and ordering his arrest was not valid.
What are the types of executive privilege?
a. state secrets (regarding military, diplomatic and other security matters)
b. identity of government informers
c. information related to pending investigations
d. presidential communications
e. deliberative process
In what cases is the claim of executive privilege highly recognized?
The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the constitution to the President, such as the commander-in-chief, appointing, pardoning, and diplomatic powers of the President. Information relating to these powers may enjoy greater confidentiality than others.
What specifically are the executive privileges relating to deliberations or communications of the President and other government officials?
These are the presidential communications privilege and the deliberative process privilege.
How are the presidential communications privilege and the deliberative process privilege distinguished?
The presidential communications privilege applies to decision-making of the President. It pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential”.
The deliberative process privilege applies to decision-making of executive officials. It includes “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”
Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones.
Moreover, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege.
What is the type of executive privilege claimed in this case?
The type of executive privilege claimed in this case is the presidential communications privilege.
Is there a presumption in favor of presidential communications?
Yes. Presidential communications are “presumptively privileged”. The presumption is based on the President’s generalized interest in confidentiality. The privilege is necessary to guarantee the candor of presidential advisors and to provide the President and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.
The presumption can be overcome only by mere showing of public need by the branch seeking access to presidential communications.
Who are covered by the presidential communications privilege?
Aside from the President, the presidential communications privilege covers senior presidential advisors or Malacanang staff who have “operational proximity” to direct presidential decision-making.
What are the elements of the presidential communications privilege?
The following are the elements of the presidential communications privilege:
a. The protected communication must relate to a “quintessential and non-delegable presidential power”.
b. The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The advisor must be in “operational proximity” with the President.
c. The privilege is a qualified privilege that may be overcome by a showing of adequate or compelling need that would justify the limitation of the privilege and that the information sought is unavailable elsewhere by an appropriate investigating agency.
What are examples of “quintessential and non-delegable presidential powers” which are covered by the presidential communications privilege?
The privilege covers only those functions which form the core of presidential authority. These are functions which involve “quintessential and non-delegable presidential powers” such as the powers of the president as commander-in-chief (i.e., to call out the armed forces to suppress violence, to declare martial law, or to suspend the privilege of the writ of habeas corpus), the power to appoint officials and remove them, the power to grant pardons and reprieves, the power to receive ambassadors, and the power to negotiate treaties and to enter into execute agreements.
Are the elements of the presidential communications privilege present in this case?
Yes. The communications elicited by the three questions are covered by the presidential communications privilege because:
a. First, the communications relate to the power of the President to enter into an executive agreement with other countries.
b. Second, the communications are received by Neri, who as a Cabinet member can be considered a close advisor of the President.
c. Third, the Senate Committees have not adequately shown a compelling need for the answers to the three questions in the enactment of a law and of the unavailability of the information elsewhere by an appropriate investigating authority.
Does the grant of the claim of executive privilege violate the right of the people to information on matters of public concern?
No, for the following reasons:
a. Neri appeared before the Senate on Sept. 26, 2007 and was questioned for 11 hours. He also expressed his willingness to answer more questions from the Senators, except the three questions.
b. The right to information is subject to limitation, such as executive privilege.
c. The right of Congress to obtain information in aid of legislation cannot be equated with the people’s right to information. Congress cannot claim that every legislative inquiry is an exercise of the people’s right to information.
Was the claim of executive privilege properly invoked by the President in this case?
Yes. For the claim to be properly invoked, there must be a formal claim by the President stating the “precise and certain reason” for preserving confidentiality. The grounds relied upon by Executive Secretary Ermita are specific enough, since what is required is only that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified, and the following statement of grounds by Executive Secretary Ermita satisfies the requirement: “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.”
What reasons were given by the Supreme Court in holding that it was wrong for the Senate to cite Neri in contempt and order his arrest?
a. There was a legitimate claim of executive privilege.
b. The Senate’s invitations to Neri did not include the possible needed statute which prompted the inquiry, the subject of inquiry, and the questions to be asked.
c. The contempt order lacked the required number of votes.
d. The Senate’s rules of procedure on inquiries in aid of legislation were not duly published.
e. The contempt order is arbitrary and precipitate because the Senate did not first rule on the claim of executive privilege and instead dismissed Neri’s explanation as unsatisfactory.
Implications of the Supreme Court Decision:
Who has the burden of showing whether or not a claim of executive privilege is valid?
Executive privilege is in derogation of the search for truth. However, the decision recognized Presidential communications as presumptively privileged. Hence, the party seeking disclosure of the information has the burden of overcoming the presumption in favor of the confidentiality of Presidential communications.
This presumption is inconsistent with the Court’s earlier statement in Senate vs. Ermita (April 20, 2006) that “the presumption inclines heavily against executive secrecy and in favor of disclosure”. It is also inconsistent with constitutional provisions on transparency in governance and accountability of public officers, and the right of the people to information on matters of public concern.
Does the decision expand the coverage of executive privilege?
Yes, the decision expands the coverage of executive privilege in at least two ways:
a. The decision explained that the presidential communications privilege covers communications authored or “solicited and received” by a close advisor of the President or the President himself. This means that the privilege applies not only to communications that directly involve the President, but also to communications involving the President’s close advisors, i.e., those in “operational proximity” with the President. There is no definition of “operational proximity”, so it is not clear how far down the chain of command the privilege extends. This expansion of the coverage of the privilege means that information in many areas of the executive branch will become “sequestered” from public view.
b. The decision also stated that the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. This means that the privilege protects not only the deliberative or advice portions of documents, i.e., communications made in the process of arriving at presidential decisions, but also factual material or information concerning decisions already reached by the President.
How will the decision affect other investigations?
The decision makes it easy for the President to invoke executive privilege, since what is required is only that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” This in effect will enable the use of executive privilege to hide misconduct or crime. According to Fr. Bernas, S.J., the implication of the ruling is that once the “presidential communications privilege” is invoked, no evidence is needed to support it even if there are valid reasons for disclosing the information sought. “This would revolutionize the doctrine in a manner that can affect all other investigations. This can, for instance, hamper effective use of the … writ of amparo and writ of habeas data. It can also cripple efforts to battle official corruption ….”
In particular, what is the effect of the decision on the Senate’s power to conduct inquiries in aid of legislation?
The decision severely limits the Senate’s power of legislative inquiry and its ability to investigate government anomalies in aid of legislation. The decision encroaches upon matters internal to the Senate as an institution separate from and co-equal to other branches of government.
The decision, for instance, requires the Senate to give its questions in advance of its hearings. But this is a requirement applicable only to the question hour and not to inquiries in aid of legislation. Moreover, it is impractical, since follow-up questions of Senators will be difficult to anticipate.
The decision also requires the Senate to publish its rules of procedure on legislative inquiries every three years. But the Senate traditionally considered as a continuing body. Senate committees continue to work even during senatorial elections. By tradition and practice, the Senate does not re-publish its rules. To require publication of its rules every three years is unnecessary and inconsistent with its tradition and practice.
Did the Supreme Court ruling establish a doctrine on executive privilege?
No. Although the vote is 9 — 6 in favor of upholding the claim of executive privilege, two of the nine Justices concurred merely in the result, while one Justice argued not on the basis of executive privilege. Hence, only six out of the nine Justices explained their votes in favor of the claim of executive privilege. Six out of a total of 15 Justices do not establish a doctrine.
Can the Senate continue with its investigations despite the Supreme Court ruling?
The decision does not stop the Senate from continuing with its investigations and from undertaking other inquiries, although the government has already declared that officials will not appear unless the Senate rules are first published. Should Neri (and other officials) appear, the Senate can ask him questions other than the three questions. But Neri may again invoke executive privilege on other questions, which could result in another case before the Supreme Court, and the cycle may be repeated again and again. Such a situation, particularly where there appears to be a pattern of concealment in government activities, will ultimately be harmful to public interest.
Prepared by:
Atty. Carlos P. Medina, Jr.
March 30, 2008
Let’s see what all those apologists will say now in their dissembling and dithering, this is a Chief Justice speaking!
Nice one by Panganiban.
Dare I say, naglipana kasi ang mga boplaks sa current supreme court.
Transparency I say!
“Malacañang ‘open’ to Jocjoc extradition…Esperon is said to be poised be new defense secretary…”
Never mind the likes of Jocjoc Bolante, he may be good businessman, but he is a just truly a unthinking pawn.
What gets me is that Gen. Esperon, who has his own power base, is co-opted in all of this. He is intelligent: Philippine Science High School, PMA, and graduate school in UP (MBA degree).
Either GMA is truly smart, or many Filipinos are passive or stupid.
Judge Panganiban: “With due respect, I believe that the majority decision failed to check presidential abuse; worse, it imprudently expanded executive privilege to cover wrongdoings.”
That’s how many sensible Filipinos see the folly of the 9-6 SC ruling favoring Neri.
It’s a clear cover up, what else?
I believe Ed de Jesus said what many have failed to see, esp. Arroyo’s rah-rah boys (and girls): Neri’s refusal only implicated Gloria even more and made her a principal in the NBN-ZTE deal.
The more Neri invokes executive privilege, and as SC sustains this invocation, the more that people will think of a large-scale larceny and systemic complicity in behalf of Gloria’s misrule.
@jaxcast
Esperon intelligent???? Well I guess lapdogs can be trained well…he’s just a lackey,
Key question: how permanent are the new principles established by the Supreme Court regarding executive privilege?
It’s clear that the Supreme Court is siding with the GMA administration at this point, but for how long?
“Six out of a total of 15 Justices do not establish a doctrine.” — says Atty. Carlos P. Medina. This leads me to suspect that the Supreme Court is aware of the precariousness of their position.
Sa aking palagay, dapat magharap ng bagong kaso sa harap ng Korte Suprema para lumabas ang totoong kulay ng mga iyan.
On your INQ7.net article A dangerous precedent (31 Mar 2008) you closed with:
Maybe this is what Pinoys deserve.
We don’t have to look too far for an analogy. Notice on your daily drive to work how just about ANY road rule put up by the authorities is blatantly disobeyed.
So I see it as yet another stoking of that pathetic Pinoy victim mentality to be insinuating that Pinoys are being deprived of their “right” to participatory democracy in this latest circus.
You give Pinoys a public park, and we’ll turn it into a marketplace or a squatter colony.
You give Pinoys the vote, and we elect a character like Erap to the highest office.
You give Pinoys Christmas, and we turn it into an occassion for panhandling and extortion.
You give Pinoys People Power and we turn it into a periodic ocho-ocho party.
You give Pinoys a world-class white sands island and we turn it into an over-built cesspool.
You give Pinoys democracy, and we turn it into a circus.
You give Pinoy RULES and we turn them into recommendations.
Galeng talaga ng Pinoy!
Pinoys aren’t participators nor stakeholders. I’d describe us more as a bunch of short-sighted passive-aggressive underminers who pervert good ideas, lay waste to natural resources, and squander rare opportunities.
On the contrary, we aren’t turning into spectators, we already ARE spectators — lying around, clutching rosary beads and watching with silly smiles on our faces as the rest of the world moves on.
now now people:
if Neri were told by the SC to answer, Neri can easily say no to these questions (San Miguel all over again?)
Neri cannot deny this anymore. His further testimony is not needed! the fact that gloria had to cancel the project meant that she gave the go signal despite Neri’s advice on Abalos’ bribery attempt!
so what’s the ‘cover-up’ there?!
as for a former Chief Justice speaking – A Chief Justice has additional administrative duties, that the rest of the Associate Justices don’t have. But when it comes to the SC’s primary task of decision-making, the Chief Justice is just the first among co equals. His vote carries as much weight as the newest appointee.
for the nth time –
ano ba kayo?!
napaka ‘over to the max’ na sablay ang reaction nyo!
megahypermuch ado about nothing!
I know the reason for such kind of reaction –
another chance for people power goes pffffft again!
but wait! on the other hand,
if the SC decision on Neri is a cover-up, it should also have the same effect as when the senate brazen 11 denied the opening of the envelope (back in the 2001 Erap impeachment trial) – ignite EDSA 2!
where are the people in the neighborhood? (to the tune of one popular Sesame Street jingle)
everywhere but EDSA!
ang kukulit nyo kasi! ayaw pa rin i-focus ang lahat ng efforts to get 1/3 of the sitting congressmen to sign a verified complaint for impeachment, para pag-file transmit kaagad sa senate!
Anthony, how are you focusing on getting 1/3 of the congressmen to support impeachment? How sure are you that bloggers here do not support having 1/3 of the lawmakers to impeach Gloria and are working towards it?
If you accuse anti-Gloria people to give meaning to developments as another reason for another EDSA moment, you, eventhough you deny to be a paid hack, mouth expressions of somebody who froths at the mouth everytime something is won by Gloria. The 9-6 SC vote for Neri is a win for Gloria, and you’re so happy about it.
Anthony,
I am sure many Pilipinos are praying and working hard to have the 1/3 vote of the Lower House. But with the present composition of the House, these Tongressmen will not do anything. Hawak sa leeg ni GMA ang karamihan. Do you remember what they did during the last two attempts for impeachemnt?
Abolish the useless Lower House and maybe something will come out better from the Legislative Branch (Senate).
BTW, we from Manila North community in Teodora Alonzo and the global community of AHS congratulate CJ Puno for his courageous and wise stand on this Neri case. We hope that he will continue his crusade against the dark force.
“For my part, I have during the past weeks challenged our citizens to rage for truth by amplifying the demos, sharpening the Senate investigations, intensifying the media blitz, and pressing on with their various demands on the President. At the same time, I wrote that GMA could save her presidency by convincing the middle forces that she would really (1) relinquish power when her term ends on June 30, 2010, and (2) abate immediately the corruption engulfing her.
To find the truth and root out graft, I even urged her to set aside her plea for executive privilege and to let Sec. Romulo Neri testify freely. The more Neri is barred from speaking, the more the public will believe that his testimony would implicate GMA in the ZTE-NBN mess. A major supporter of the President, Brother Mike Velarde recently joined the call for Neri’s unabridged testimony.
Many readers have asked, “Chief Justice, are you for or against GMA? How can you advise her how to save her presidency and, at the same time, ask people to continue raging against her?â€Â
Por la patria, not por la Gloria. I am not for or against GMA. As a jurist, I was trained to be for or against issues and principles, not for or against personalities. I am for saving our country, our democracy and our economy. Through methods that are constitutional, moral and rational.
If GMA would no longer pursue constitutional change and instead assure an honest, orderly and peaceful transfer of power in 2010; if she would sincerely fight graft, not by empty rhetoric, but by prosecuting immediately some biggies in the NBN mess and naming an independent chair of the Commission on Audit; if she would appoint trustworthy Supreme Court justices to replace the six who will retire in 2009 (Justices Ruben T. Reyes, Adolfo S. Azcuna, Dante O. Tinga, Consuelo Ynares-Santiago, Leonardo A. Quisumbing and Minita Chico-Nazario); if she would follow in good faith the advice of the CBCP and the WPA to expose the truth, end corruption and reform governance, then she deserves to finish her term!
If she would do all these, why should the citizens continue raging against her? All the foregoing “confidence building†measures will take some time. In the meanwhile, our people should continue flexing their constitutional rightsâ€â€freedoms of speech, peaceful assembly, press, information, congressional inquiry, redress of grievances, etc.â€â€to remind the President to forge on with the reforms.”–
–sc cj a.panganiban
On teh 1/3 vote from the house.
The best opportunity to achieve this was during the last election. The opposition or those who wanted Gloria to be impeached should have identified 73 (?) districts. And make it really sure that these the a pro impeachment candidates wins in the district.
In Metro Manila and NCR alone, majority of the people is anti Gloria according to the surveys. But why in the hell a lot of “Gloria Alipores” stillmanged to get elected.
Para sa akin, dalawang bagay lang yan:
1. Mahina talaga ang strategy ng opposition.
2. Hindi talaga desidido ang opposition na tangalin is Gloria. Dahil mag kakaroon ng advanatge si Noli De Castro. Ang strategy ng opposition mag -iingay ng mag inagy para magkaroon ng media coverage at makilala ng mga tao. Para pagdating ng eleksyon tumaas ang name recall nila.
Sa madaling salita pinaglalalaruan lang ang mag tao by dangling teh heads of teh aroyos in public. Pinatkaw lang pinatakaw ang mga tao.
Eh hindi na rin basta basta nag papadala, nagpapagamita at nga papauto ang mga tao. So flop ang people power. Wala na pong himala, kay wag na asahan ang tipping point point. Malabo eh.
Neri cannot deny this anymore. His further testimony is not needed!
Scalia, this isnt just about Neri. This is supreme court decision (albeit not final and executory yet) that can affect not just ZTE but future corruption investigations. Step back a bit and broaden your focus. Youll see why legal luminaries, to use your term, are criticizing it. And Im confident that if you do look at it without the Neri blinders, youll see why it is a wrong decision, too.
Jeg, legislative inquiry was not designed for corruption investigations. and ‘executive privilege’ was invented to shield the presidency from political harassment from congress. it’s working as it should.
legislative inquiry was not designed for corruption investigations.
Oh, sorry. Didnt realize people could be persnickety. I know I am sometimes. Let me rephrase:
…that can affect not just ZTE but future corruption investigations in aid of legislation.
Better?
(And, come on. The President should be harassed by Congress. That’s what it’s there for. And all three branches of government should be harassed by us, the people. If they dont feel harassed by us, then we’re not doing our job.)
Here we get to the heart of disagreements. If you honestly believe the above, then it makes sense why you would support the president. If you heartily disagree with the above, then it explains why you are appalled by this decision.
for most people though, to debunk the above statement to the extent it deserves would require so much time and research that one would have to wonder if it’s worth it, considering how battlelines have been drawn for three years now.
Fr. Joaquin Bernas, Ateneo de Manila law dean and a recognized authority on Philippine Constitutional Law, is simply diplomatic in stating that the implication of the majority decision in Neri v. Senate Committee would be to “revolutionize the doctrine on executive privilege.â€Â
On the other hand, the Hon. Artemio Panganiban, the former Supreme Court Chief Justice, is almost apocalyptic in finding the Neri decision to have “unreasonably suppressed the truth†and warning the justices against choosing “to serve . . . President Arroyo†or otherwise earn the dishonorable tag as the “Arroyo Supreme Court.â€Â
When push come to shove however and what’s teetering on the precipice is the very foundation of our democratic institutions, ought not Filipinos of the stature of Bernas and Panganiban do more and call a spade a spade? The message would certainly be heard louder if what’s said in unison is: That the judicial misconduct by the majority in Neri amounts to “culpable violation of the Constitution†and therefore constitutes impeachable offense.
Why not?
This time, where are the “fast draw†impeachment competitors, Lozano and Pulido?
Jeg, harass as in inventing bank accounts in germany?
mlq3, i know in an emotional setting it’s hard to distinguish the president from the presidency. but we should remember that executive privelege is for the presidency, not this sitting president.
i wonder though why the supreme court settled on this very expensive method of resolving questions of executive privilege, that is, on a per question basis. it’s so impractical. it’s simpler to let things function according to its purpose. fine tweaking can lead to dysfunction.
Jeg, harass as in inventing bank accounts in germany?
Inventing evidence is illegal, minda. But Im sure you know what I mean. You may spearhead the public call for an investigation of a certain senator as is your right and in keeping with our principle of harrassing the three branches of government. But personally, we have bigger fish to fry.
mindanaoan, this is precisely what’s objectionable about the decision (and goes to the heart of a running debate i’ve been having with friends who support the president because they believe she is restrengthening an institution that’s been weakened over the years). the decision sets a dangerous precedent for all presidents, just as the president’s actions may short-sightedly seem to be restoring the enfeebled presidency but is actually making it impossible for future presidents to wield even their justifable powers because of how the institution has been debased by the incumbent. even if she goes by 2010 the damage she has wrought will last a long, long time.
Dear Ate Glo:
With your very busy schedule ,do you still have time to read blogs?
Equalizer
——————————————————————————————–
Dear EQ:
I just read the humorous ones.In particular,I like “Uniffors” because of its very funny photos (does he use “photo shop”?). Si Philippine Onions is funny too.
I also like Manolo Quezon’s blog particularly the postings of some of the members of Luli’s internet brigade.
I don’t like the people of Ellensville.They are raving mad about me.
Si Ricky Carandang ok din.But he doesn’t update his posts.
Philippine Commentary is too heavy for me.
Si Schumey is interesting.Does he still have time for racing?
By the way,I only read the Equalizer when you have posts about Hillary.I hope she wins!(Bill was my classmate!)
Ate Glo
mlq3, it is equally objectionable for the incumbent to debase our institutions as it to undermine them with criticisms even with good intentions.
as it is
The Equalizer,
i dont’ understand why you need to copy-paste your post from your blog to here. i think people also read your blog.
mindanaoan, but the alternative then is to shut up, put up with everything, even if the institutions are being subverted from within. what should be clear is that those making criticisms shouyld be aware of the potential effects of those criticisms, both in terms of individual officials and the effects such criticisms may have on the institution the official’s in charge of, or part of. in this regard the public tempers the enthusiasms of individual critics (my favorite example being my belief that public opinion prefers impeachment to all other options, up to now). but also, it may well be that institutions that have become too powerful or reckless do need to have their authority eroded, this is how the absolute power of kings went the way of the dodo.
If Marcos was able to do it at the time of martial law then why not GMA right?
abe, because the implications for panganiban and bernas are simply mind-boggling. if we have a puppet court, then that means the time has come to tear up the rules and who knows where that will lead -but certainly, to the dismantling of the very system both devoted the most productive years of their lives to building and upholding.
GREAT NEWS PEOPLE GMA STEPPED DOWN AND ORDERED THE RE-SHUFFLING OF THE SUPREME COURT AND HER CABINET AND SHE IS NOW BEING SUBJECTED TO AN INVESTIGATION! NOT! hehehe happy April Fools Day!
From my admittedly inexpert legal standpoint, this was a defining moment in the interpretation of a Constitutional right — that of executive privilege. Knowing how some of my young lawyer friends pay frequent lip service to the Constitution, I wouldn’t be surprised if Panganiban and Bernas finds the ruling’s implications mind-boggling.
At this point, the only benign plan of action for the Supreme Court I can think of is for them to eventually reverse this ruling. After all, the Supremes only need to hold out until impeachment is possible in Congress, after which the heat would no longer be on them.
I believe that the GMA administration is playing for time, and the SC is giving them that time until the damage wrought can be reversed when it becomes “moot and academic”.
I think Bernas (and Monsod) are paralyzed by the prospect of a Burmese-type military junta. The foolishness of what Bernas wrote last Feb 24 is revealed by recent events:
Now that his false hopes have been dashed, i suppose he always has the option to mentally switch off rather than contemplate mind-boggling implications.
Congressman Locsin should review the chronology of events surrounding Nixon refusal to submit documents and the tape recordings to the Senate Select Committee under claim of executive privilege. Nixon at first refuse to submit himself or submit documents and tapes to the committee. There were three hound dogs after him then. The Senate committee, the special prosecutor and Judge Sirica.
Locsin for all his wasted pronouncements should read up on what transpired. Nixon did release tapes to the Senate committee but he tried to use subterfuge and even fired Archibald Cox for not supporting his efforts that now we know was a grand design to cover up his crimes. He only released tapes that would tend to cover up his crime.
The political precedent was set. The Senate Committee was not to be denied. By the time Nixon’s claim of executive privilege reached the U.S. SC, he had very little credibility left to claim it. He could have destroyed all the tapes and refused to budge on that principle but did not do it. No tapes would have ever been released but he did not. Too much shit had been exposed by the Senate Select Committee hearings.
He gave in to the Senate Select Committee investigating the break in related to election practices against the Democratic National committee. This was totally separate from the House Judiciary Committee who later moved to initiate the impeachment proceedings.
It is not true that the Senate Select Committee was denied access. They were in on the hunt and they got part of what they wanted.
So what is Locsin talking about that a Senate Committee cannot act for the Congress versus the President? History has proved him totally wrong on that count. That is if you believe in the co-equal but separate idea of government.
1973
# July 7
Nixon tells the Senate Committee that he will not testify before it and will not grant access to Presidential documents, claiming Executive Privilege.
# July 13
Alexander P. Butterfield, a former presidential appointments secretary, informs the Senate Committee of the White House taping system. He says that since 1971 Nixon has recorded all conversations and telephone calls in his office. A protracted legal battle begins between the White House, the Congress and the Special Prosecutor.
# July 18
Nixon reportedly orders the White House taping system disconnected.
# July 23
The Senate Committee and Archibald Cox demand that Nixon hand over a range of White House tapes and documents.
# July 25
Nixon refuses to surrender any documents or tapes.
# July 26
The Watergate Committee subpoenas several White House tapes.
# August 9
The Senate Committee takes legal action against Nixon for failure to comply with the subpoena.
# August 15: Nixon delivers a second Address to the Nation on Watergate. Nixon claimed “executive privilege” for the tapes and argued that he should not have to hand them over. Archibald Cox and the Senate Watergate committee request the Supreme Court instruct Nixon to surrender the tapes.
# August 29
Judge Sirica orders Nixon to hand over 9 tapes for Sirica to review in private. This is the first of a number of court battles that Nixon is to lose.
# October 10
Vice-President Spiro T. Agnew resigns after pleading no contest to a charge of income tax evasion. He was sentenced to three years of unsupervised probation and a $10,000 fine.
# October 12
Nixon nominates Gerald Ford, Republican Minority leader in the House of Representatives, as vice-president. At the same time, the US Circuit Court of Appeals for the District of Columbia upheld Judge Sirica’s ruling that Nixon should surrender tape recordings relevant to Watergate.
Around this time, Nixon’s own tax returns also come under investigation.
* October 19
Nixon offers a compromise to the Senate Watergate Committee, proposing that the Democratic Senator from Mississippi, John Stennis, be permitted to listen to the tapes and prepare summaries for Special Prosecutor Cox.
* October 20
Cox rejects the Stennis compromise. In a series of events that became known as the Saturday Night Massacre:
o Nixon orders his Attorney-General, Elliot Richardson, to fire Archibald Cox. Richardson refuses and resigns in protest.
o Nixon orders the deputy Attorney-General, William Ruckelshaus, to fire Cox. Ruckelshaus refuses and is sacked.
o Robert Bork, the Solicitor-General, now acting as Attorney-General, fires Cox.
In the 1980s, Bork becomes a controversial Reagan nominee to the Supreme Court. His nomination is rejected by the Senate.
* October 23
Under immense pressure, Nixon agrees to comply with the subpoena and releases some of the tapes.
* November 1
Leon Jaworski is named as the new Watergate Special Prosecutor.
* November 17
During a press conference, Nixon defends his actions, urges the nation to put Watergate behind it and says “I’m not a crook.
* November 21
A gap of 18 and a half minutes is discovered on the tape of the conversation between Nixon and Haldeman on June 20, 1972. Electronics experts report that the gap is the result of at least 5 separate erasures. Nixon’s secretary, Rose Mary Woods, denies deliberately erasing the tape.
* December 7
White House Chief of Staff, Alexander Haig, says one theory is that “some sinister force” erased the 18 and a half minutes of tape.
1974
· *January
There are now ongoing calls for Nixon to resign and the Congress begins to seriously consider impeachment.
TIME Magazine names Watergate Judge John Sirica as Man of the Year.·
*February 6
The House of Representatives votes to authorize the House Judiciary Committee to investigate whether grounds exist for the impeachment of President Nixon.
*March 1
Nixon is named as an unindicted co-conspirator in an indictment against seven former presidential aides.·
*April 16
Special Prosecutor Jaworski issues a subpoena for 64 White House tapes.·
*April 30
Nixon refuses to hand over the tapes, but provides more edited transcripts to the Judiciary Committee. He appears on national television to announce his decision to release the transcripts. There is public shock at the general tone of the conversations and the foul language used by Nixon and others. The expression “expletive deleted” enters the vocabulary.
*May 9
Impeachment hearings begin before the House Judiciary Committee.·
*July 24
The Supreme Court, by a unanimous vote of 8-0 (William Rehnquist abstaining) upholds the Special Prosecutor’s subpoena, ordering Nixon to make the tapes available for the Watergate trials of his former subordinates. The case is known as United States v. Nixon. o The full text of the Supreme Court’s decision.
*July 27
The House Judiciary Committee adopts the first Article of Impeachment by a vote of 27-11, with 6 Republicans voting with the Democrats. The Article charges Nixon with obstruction of the investigation of the Watergate break-in.
*July 29
The House Judiciary Committee adopts the second Article of Impeachment that charges Nixon with misuse of power and violation of his oath of office.·
* July 30
The House Judiciary Committee adopts the third Article of Impeachment, charging Nixon with failure to comply with the House subpoenas.
* August 5
Nixon releases transcripts of three conversation he had with Haldeman six days after the Watergate break-in. The June 23 tape becomes known as The Smoking Gun because it reveals that Nixon ordered the FBI to abandon its investigation of the break-in.Nixon releases three more tapes that prove he ordered a cover-up of the Watergate burglary on June 23rd 1972, six days after the break-in. The tapes show that he knew of the involvement of White House officials and the Campaign for the Re-election of the President, as well as revealing that Nixon ordered the FBI to abandon its investigation of the break-in.These tapes become known as The Smoking Gun The eleven Republicans on the Judiciary Committee who voted against impeachment say they will change their votes. It is clear that Nixon will be impeached and convicted in the Senate.
* August 7
Three senior Republican congressmen meet with Nixon, advising him that his chances of avoiding impeachment by the House and removal from office by the Senate are “gloomy”.Around the country, calls mount for Nixon’s resignation, and speculation builds about Nixon’s intentions.
* August 8
In a televised address to the nation at 9pm, Nixon announces that he will resign.
http://www.watergate.info/chronology/1973.shtml
http://www.watergate.info/chronology/1974.shtml
hvrds,
in short, the sole issue in US vs. Nixon is can Nixon refuse to turn over the tapes subpoenaed by Special Prosecutor?
then the difference between US vs. Nixon and Neri vs. Senate is that in Neri, there is no criminal investigation yet similar to the investigation by the special prosecutor. the tapes would be used in the watergate trials.
it would have been different if its just the US Senate Committee asking for the tapes.
eh sa Neri, whats the use of Neri’s answer to the 3 questions? his answers to these questions aren’t essential to a trial
in US vs. Nixon, as there was a pending trial, refusing to turn over the tapes is really covering up a crime
in Neri vs. Senate, there is no trial nor criminal investigation yet
Update on brian gorrell’s site. A commenter said this: One Gucci Gang tactic they have been trying is to pull in big names into the controversy. recently, KC conception’s name was dropped at the comments section. It’s getting boring, to be honest. I blame it on the cowardice of the slandered people. A lawsuit in Australia might make it on CNN and BBC. Right now, it’s strictly cause célèbre for locals.
Republican senator, Howard H. Baker Jr. acted as Vice Chairman of the Senate Watergate Committee. During the committee’s proceedings, Baker asked: “What did the President know, and when did he know it?” He was then a cl
Knowing fully well that if any evidence came up pinning down then President Nixon in the Watergate fiasco the Senators in the Senate Select Committee would also stand as his jurors in an impeachment trial in the Senate.
Everyone wanted to see the “smoking gun” exposed during the committee hearings.
They did not halt their hearings fearful of what they would expose concerning the President then.
Theirs was not an impeachment inquest. It was part of their legislative and oversight functions on electoral practices.
Congressman Locsin should consult his history books.
The institutions whacked Nixon good. But then they had men who believed in principles larger than themselves.
the big difference with nixon’s case from gma is that the congress is not beholden to nixon and their loyalty is to the american people and to their country. where as our lower house of congress is filled with gma lapdogs and don’t care selling their soul to the devil if the price is right.
our institution have been subverted by gma and every venue to bring gma to justice under the rule of law is next to impossible. even the supreme court which is one of the last hope of filipino people to uphold the rule of law have shown that some justices are beholden to the president as evidenced by their decision in neri v. senate.
^
i really really wonder who voted those lapdogs in congress..
oops wait.. tayo pala!
not me! did not even vote for my relatives to any local position and also voted for r.rocco for president!
maybe some here did voted for the lapdogs!
tinio, did you?
Jeg,
“Scalia, this isnt just about Neri. This is supreme court decision (albeit not final and executory yet) that can affect not just ZTE but future corruption investigations.”
ah no, not really.
“Step back a bit and broaden your focus.”
I have, even before this day. Thank you
“Youll see why legal luminaries, to use your term, are criticizing it.”
the legal luminaries can criticize it all year long, and it still stays (unless reversed).
by the way, my earlier use of ‘legal luminaries’ and their ‘criticism’ is strictly on the participation of Brion – that no legal luminary found anything unethical about Brion taking part in the decision though he was not an SC member yet during the oral arguments.
“And Im confident that if you do look at it without the Neri blinders, youll see why it is a wrong decision, too.”
wait wait. sorry i have not been clear in my approach to the Neri decision.
yes its a wrong decision
but its not the end of the world
my concern is that why are people overreacting to it?
ive said this before, and ill say it again – its already black and white that gloria gave the go-signal to the project despite getting Neri’s warning of an Abalos bribery attempt!
the battle may be lost, but not the war
maybe it is you who should broaden your focus – the president is immune from prosecution, but not from investigation. if the ombudsman demands from Neri evidence he cannot invoke executive privilege, because then that would be obstructing the administration of justice!
all those efforts/resources spent in the Senate circus should have been allocated to putting the pressure on the ombudsman to do its job
a Senate investigation is not administration of justice. kaya sablay na sablay yung view na the Neri decision shields criminal activity.
if Neri was told by the SC to testify, he can answer a lie to the first two questions (San Miguel deja vu?).
Neri vs. Senate can serve as a lesson to legislators that inquiries in aid of legislation cannot take the place of a criminal investigation. in other words, investigations of corruption should be out of legislators’ hands
much ado about nothing!
nice try shifting blame for accountability. in the end we are all accountable for our OWN actions. individual actions! let the blame fall where it should. i may tell you to kill your neighbor but in the end it is you who will pull the trigger! so who killed your neighbor?
That’s a basic flaw of representative democracy. The system has no way of holding the representatives to their promises and duties once the counting is over. Punishing them in the next elections is often too late. That’s why we need direct democracy to various degrees depending on the situation and at some point, it means People Power.
you can apply all the pressure you want on ombudsman, doj, congressmen(administration), and every other institutions that have been corrupted by gma and nothing will happen. selective rule of law is what we have. rule of law is being bent or corrupted by those in power.
even the oppositions can’t get their act together! it is a sad sad chapter in our history as a filipino nation!
what a shame 🙁
Jon Mariano,
“Anthony, how are you focusing on getting 1/3 of the congressmen to support impeachment? How sure are you that bloggers here do not support having 1/3 of the lawmakers to impeach Gloria and are working towards it?”
very sure. palpak yung mga naunang attempts. saka palpak pa rin ang strategy nyo – file a complaint, dadaan sa committee, then aasa na lang sa plenary! asus! di ganyan ang pag-impeach kay erap noon!
“If you accuse anti-Gloria people to give meaning to developments as another reason for another EDSA moment, you, even though you deny to be a paid hack, mouth expressions of somebody who froths at the mouth everytime something is won by Gloria. The 9-6 SC vote for Neri is a win for Gloria, and you’re so happy about it.”
hey im not a paid hack.
if you think im a paid hack (ano ka ba naman, wga mo namang gamitin yang mga ganyang comment dito! mahiya ka naman kay manolo! pang ellentordesillasdotcom lang yan!) its because you’re a paid hack as well! it takes one to know one!
iho, whether im happy or not is beside the point. the decision stands, even though 89,999,991 of Pinoys disagree with it!
That’s why we need direct democracy to various degrees depending on the situation and at some point, it means People Power. – cvj
We’ve discussed this issue before. How sure are the common people that the results of the next ‘direct democracy’ experiment will not be flawed?
Pilipinoparin,
oh yes i remember. kasalanan ng mga matatalinong oposisyon yan. the bright boys of the opposition snatched defeat from the jaws of victory!
fairly recent pa ang pag-impeach kay Erap pero bakit kaya di ginagaya? palpak ang strategy ng mga matataliong oposisyon: file a complaint, dadaan sa committee, then aasa na lang sa plenary! asus! di ganyan ang pag-impeach kay erap noon! may 1/3 na pirma na, then saka nai-file!
saka my friend, dyan papasok ang working on congressmen. all efforts/resources spent in staging moronic people power attempts should be allocated na lang to working on congressmen to reach the 1/3.
removal of gma from malacanang is not the cure all for all the problems ailing our society and country. it is for sure that gma alone can’t do all these crimes alone by herself that she is being accused of wihtout the help and connivance of those also in power, but it will be the right first step towards ridding our government of thieves, cheats and liars.
then the next logical step would be prosecuting gma and the rest of the accused criminals, and truly applying the punishment when found guilty by the courts.
Maginoo, there are no guarantees because our public officials are autonomous agents endowed with their own free will. Besides, interaction between systems happens indirectly via structural coupling so, whether it be elections or people power, there is no way to protect against unintended consequences. The best we can do is to ensure constant feedback between the system (i.e. government) and its environment (i.e. which includes other subsystems as well as individuals) so that any deviation from the desired direction can be immediately corrected. Under a purely representative democracy, feedback happens only during elections, which are too few and far between. Direct Democracy can compensate for this limitation.
mlq3, that’s basically my point.
Panagniban is unequivocal that the Neri majority has ignored the “constitutional mandate requiring transparency and accountability of officials†and instead invoked and applied foreign jurisprudence that’s “simply inapplicable†(the greater part of which, if I may add, is a decision of a U.S. court of appeals).
On the other hand, for Bernas “the ponencia (ruling) that the matter was covered by executive privilege†could mean no less than “to sublimate guesswork.†Indeed, Neri v. Senate Committee while may not be a doctrine as yet is a “paralyzing and stifling†decision, Bernas, the Court’s most wanted amicus curiae, evidently suggests further.
Won’t the Court fire a lower court judge for disregarding clear constitutional mandates or basing on guesswork a decision the effect of which is to “cripple efforts to battle official corruption†or to seek the truth about such corruption rending a nation already financially strapped? This time, what’s inside the envelope the “Negotiable Nine†have denied the public to know?
For such an assault to the Constitution and to the very foundation of Philippine republicanism, a motion for reconsideration as the next course of action would be a copout for Congress. But initiating impeachment proceedings against the erring justices will afford an opportunity to let out the folly of the unfortunate decision they arrived at in the comfort of their secret chambers.
Or, at the very least, the Senate can call the Palace bluff or threat of a constitutional crisis that may result from all and any of its proceedings or activities including legislations being rendered null if traceable to the supposedly infirm Senate Rules.
That would be a sampling of “where that will lead -but certainly, to.”
BrianB,
I agree there is some serious cases of slander going on in there. However, I think most readers are not that naive to swallow hook, line and sinker what is written in the comments section. The standards has to be differentiated from what Gorrell actually writes — mostly because he has identified himself publicly. There is weight there, with the accompanying potential of damnation if he in fact will be found lying.
It seems that what Gorrell has in fact written of, are true. Partly because the accused people have not rebutted or responded. I mean of all people, a few consider themselves part of the press or are “journalists” and they have at their disposal the resources to do so. Scared? I don’t think so. The charges were probably true, give and take some.
One thing is for sure, a vast majority finds Brian Gorrell credible. He writes well in fact. And also because he writes from the heart.
The positive thing: he has unleashed a social revolution of some sort. He is the veritable equivalent of Jun Lozada in the political arena (just note the uncanny similarity in their “defining” experience was, Brian was framed up on trumped up charges by his ex lover and his posse and was dragged helpless to a police station while J Lo came close to being murdered by his police kidnappers). Very ironic because it was actually just a case of a gay LQ gone bizarre and traumatic for one of the parties. Too bad for the GG and their ilk, this man had some spicy dishing to throw their way.
How much is this indicative of the desperation, the injustice of the system thats bearing down on us? How absurd isn’t it at some level? Height of absurdity in fact. Filipinos addicted to this gossipy tale and it actually took a foreigner to name names, tell a riveting, down to earth story of how corrupt, hypocritical and cowardly our society is. First time it happened. We usually confine tales of elite abuse to novels, films and television dramas. Facts offered here, not fiction.
Gorrell actually highlighted a lot of the relevant issues.
One of the things I learned is that we have a ridiculous libel law. Our laws are not modern because we actually don’t value the truth. We’re like the mafia, we uphold omerta because we like to save face first before we can face the truth. Save face! As if there is something to save still.
Our laws, our standards belong to the age of feudalism. We live in a fucking third world hell-hole indeed. We are poor in spirit first and foremost.
father bernas’ calling the neri decision ‘guesswork’, after the side he was helping was defeated, is another case of whiney-whiney.