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Primer on the Neri Case (updated)
By mlq3 Posted in Daily Dose on March 31, 2008 162 Comments 32 min read
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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

 


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  1. @madonna

    “Save face!…….”

    Taken to the extreme, Saving face seems to be a very Asian trait. The Chinese, the Japanese, the Filipinos….that’s why we have scapegoats and probably why we don’t have a transparent government….

  2. congressman golez seeks the reorganization of the jbc. he wants to transfer the power to appoint members of the jbc from the president to the supreme court.

    from a puppet supreme court, now the jbc is a puppet, too? then, he wants to transfer power to appoint puppets from the puppeteer to other puppets.

    would-be justices should just be made to take a kind of bar exam for sc justices. the topnotcher gets the seat.

  3. he wants to transfer power to appoint puppets from the puppeteer, to other puppets still controlled by the same puppeteer

  4. Part of Senator Pangilinan’s statements on the Palace stance reads:

    “If we allow (Executive Secretary) Ermita’s arguments to remain uncontested then any person whose rights may have been curtailed or adversely affected by any of the laws passed in the 14th Congress can now come to court and claim that because the rules had not been published at the time that the hearings to craft these laws were conducted then these hearings as well as the laws enacted are void.

    “With all due respect to the nine Supreme Court justices, we urge them to reconsider their decision because the ramifications are so serious as to create a breakdown in the effective exercise of our legislative functions. When the constitutional principle of co-equality is undermined, the ability of government’s three branches to function effectively is severely hampered. The argument by Ermita proves just that. Thus a motion for reconsideration must be given due course.

    “Until this ruling is clarified and going by Sec. Ermita’s assertion, we now effectively have only two branches of govt. The legislative branch has been marginalized and is no longer a co equal. Finally, Malacanang must be extremely pleased that the Senate, arguably the only remaining institution willing to stand up to the excesses of the executive branch, has been rendered inutile by this decision. The Senate must within the confines of the constitution fight this vigorously. We took an oath of office to uphold and defend the constitution. It is our duty to fight this constitutional battle.”

    What happens should the Court decide to take its sweet time on the motion for reconsideration?

    I dare to propose that Congress must take out “this constitutional battle” from the Court’s yard and fight or settle it in its own backyard. That too is constitutional … and wise.

  5. anthony, you do realize the house rules today are different from the house rules during estrada’s time, precisely to prevent another estradsa style impeachment, right?

  6. mindanaon says :
    father bernas’ calling the neri decision ‘guesswork’, after the side he was helping was defeated, is another case of whiney-whiney.

    I agree. More to my point, I feel some sense of professional loss when I hear a supposedly level-headed guy (bernas) demean and belittle the work of 9 of the best legal-minds of the country. Bernas insults, not only the 9, but the entire country.

  7. “legislative inquiry was not designed for corruption investigations.”

    Agree, but it is much more wider and deeper in scope, it goes down the root causes, the whys, the whos and whats and it will encompass not just a single event, but corruption from the lowest echelon of the hierarchy to the highest and why it is happening in a routine basis and what is happening with the check and balance that are supposed to be working? The inquiry should have been participated by people not just involved in the allegations but by experts to get their inputs how to best avoid the same in the future.

    When Justice Gomery conducted his Sponsorship Corruption Scandal Inquiry, it took His Panel Two year to wrap up. With PM Chretien going to court to squash his subpoena to testify it further delay the proceeding (Chretien Lost).

    The Inquiry was Separate and distinct from the Criminal Investigation conducted by the RCMP that resulted in conviction of those directly involve in the Crime and the Purpose of the Inquiry was for Legislation and to dig deeper the details that is not possible in a criminal court, since the Legislative Inquiry is a Blameless Type where witnesses and resource person can never be charged for any crime or sue for evidence uncovered during the Inquiry, except for Perjury and contradictory evidence..

    The result was more than 100 amendments to the Federal Accountability Law..although Justice Gomery still not happy with the overall Legislation that resulted..But that corruption was discovered in 2004 and no allegations since then and that was only in the Province of Quebec involving the Money for sponsorship to convince Quebecois it’s better to be One than Split…

  8. to Abe: Here is the section:

    Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

    It appears you have nothing to stand on with your call to impeach the supreme court justices that you disagree with on Neri.

  9. agree with upn, there’s no basis to impeach anyone in the supreme court. in the words of cj puno, the ruling marked the first time that the court faced an issue involving the “claim for use of executive privilege” during a Congressional inquiry in aid of legislation. and so ‘there was “no scientific basis” to gauge how the justices would have voted’

  10. MLQ3,

    “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.”

    This is directly contradicted by the duties and responsibilities of the Blue Ribbon committee! Also on Pia’s show tonight Dean Pangalangan reminds people that the discovery of the Nixon tapes was not made in the context of the criminal case that ensued, but in the course of the preliminary questioning” in preparation for the US Senate investigation into Watergate!

    But Art Panganiban is at least partly to blame for the Supreme Court decision Neri v. Senate. At least this Court took a couple of weeks to decide a case not half as important as when he and Davide decided the fate of the Presidency of Erap in 34 minutes in 2001! And there wasn’t even a case then.

    I’m tossing my cookies out the window over this statement of his:”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 you disagree with Neri v. Senate, how can you still. agree with Estrada v. Arroyo?

    Davide and Panganiban set the example and gold standard for judicial impunity amounting to a putsch.

    Beware of Panganiban. He’s a theocrat and sophist.

    Btw, a question that was apparently asked in the bar exam was “Should the Supreme Court be considered a continuing Constitutional convention.”

    Maybe they didn’t have a chance to think it over, but Dean Pangalangan and Carlos medina seemed to agree that it was not incompatible with Constitutionalism since the court construes the document and their decisions become a part of the law of the land.

    I strenuously disagree! The Supreme Court has NO constituent powers because their decisions are not subjected to ratification by plebiscite. It is only WE THE PEOPLE who wield constituent power and can promulgate it.

    Not a bunch of unelected judges in black robes who’ve amply exposed their feet of clay.

    It’s the only thing however I disagreed with in the things Raul and Medina said on Pia Hontiveros show. (The third guy was a palace plant!)

    The strongest points from Raul were the observations of direct inconsistency in Neri v. Senate compared to Senate v. Ermita on the matter of “presumption against secrecy” (burden of proof is on the Executive), and the apparent lgoical leap to Presumptive privilege (burden on the senate).

    I love that kind of rhetoric. Raul also demolished the whole silly reasoning about “publication of the rules” by pointing to Gordon v. Sabio.

    I’ve also posted on Teddy Boy…

  11. to mlq3, who asks “upn, what if bernas is right?”

    One argues, professional-to-professional. One argues from paragraphs and even musings about what paragraphs from certain sources mean to you. “They did not even write their opinion” belittles the amount of detailed work that it takes to be considered one of the best legal minds of the Philippines. Call their conclusions wrong but don’t call them lazy.

    As for those fearing the worst, then so be it. “Be it” means let the event transpire, then go back to the Supreme Court to argue the new case which may add nuances to (or even reverse) the former decision for better lawmaking.

  12. upn, surely a professional shouldn’t shrink, if necessary, from pointing out that a work is cut and paste and not even properly written?

    as for your interpretation of so be it, that would be wonderful in a perfect world. but in real life, so be it could include consigning the supreme court to the dustbin of history. and this is the very real danger here, not precisely now, but increasing every time a major case comes up and ends up decided in a manner that further erodes confidence in the court.

  13. To me, it is risky to ask the 9 judges to review the same facts they had already seen and somehow expect the 9 judges to come up with a different conclusion. Unless you know that they were smoking marijuana when they deliberated.

    To me, the better is to wait for a new case — similar, but not exactly the same — then argue.

    From a different set of facts, the better the chances that the court can arrive at a different conclusion.

  14. DJB, the duties of the blue ribbon to conduct legislative inquiries, like that of the senate itself, are limited to those in aid of legislation.

  15. Civil disobedience… a prerogative of citizens and institutions. But be ready to get trucked off to jail, nr even a whack on the head or the knees if things get truly unruly. For institutions, I guess they fine you or take your operating license away or lock up the building gates.

    Then you argue the case in court.

  16. As for the emotion-filled words that with Neri-v-Senate ruling, ….. we now effectively have only two branches of govt. The legislative branch has been marginalized and is no longer a co equal

    Congress has not lost the option to write a Freedom-if-Information Law that better delineates rules/rights/obligations regarding OVERSIGHT and the rights to information — amount and timeliness — that Congress and all the citizenry has.

  17. As for the emotion-filled words that with Neri-v-Senate ruling, ….. we now effectively have only two branches of govt. The legislative branch has been marginalized and is no longer a co equal

    Congress has not lost the option to write a Freedom-of-Information Law that better delineates the rules/ rights/obligations regarding OVERSIGHT and the rights to information — amount and timeliness — that Congress and all the citizenry has.

  18. My view is that ALL communications by the Executive Branch (including minutes of meetings, both formal and informal) need to be preserved by mandate-of-law. That all such communications should be available for any Filipino citizen to review eight years when the communications transpired. AND that there is no statute of limitations on graft/corruption by the Executive Branch.

    ———
    Similar… just use Congress instead of Executive Branch.

  19. Anthony Scalia,

    I know that you’re not a paid hack, even Manolo believes that. But you’re acting like one.

    It’s like saying hindi ako magnanakaw pero nang magutom ka ay kumuha ka ng pagkain ng walang paalam. You know, actions speak louder than words although in this forum your words/expressions go against your claims as an unpaid hack.

  20. Madonna, I think I’ve said as much on the blog itself. Anonymous commenters are cowards. I received profanities for my efforts. The lower classes fear the upper classes like the indios of old feared the Kastilas. The Spanish only number a few thousand at any one time in this archipelago.

    Our libel laws are really, anti-tsismis laws, and who are affected more by tsismis but the rich and powerful.

  21. UPn,

    I’m arguing on the basis of an impeachable offense for “culpable violation of the Constitution,” where “culpable” means failure to exercise due care and diligence (to the point of being intentional) in the application of the clear mandate of the Philippine Constitution on public accountability and transparency, provisions that are nowhere to be found in the US Constitution upon which the citations of foreign jurisprudence in the Neri decision have been based.

    The majority in Neri has employed in large measure US court of appeals decisions or Constitutional Law doctrines rendered incongruent or inapplicable by a “people powered” 1987 Philippine Constitution providing, among other things, hybrid republicanism.

  22. Larry Flint, publisher of Hustler porn magazine, is a hero to many because Flint’s court-case against a member of the elite and a highly-respected preacher further made clear the libel laws in the USA.

    Flint’s court-case made formal the right of the American citizenry to parody the powerful.

  23. “i really really wonder who voted those lapdogs in congress..

    oops wait.. tayo pala!”

    ako, I voted for a hotdog but it converted to a lapdog later, kasalanan ko ba iyon?

  24. When people stop trusting every institution, what do you think will happen? A bloody revolution. These shit heads do not know what they are doing, God forgive them.

  25. BrianB,

    But anonymous commenters could just as well invent an on-line identity. So there is no way to get around it really. Anonymous commenters have not only came from the lower classes, but even from the ones who were at par socially with the GG.

    What I’m driving at is that the phenomenonal popularity of the blog is indicative that blogging has become a last resort for us because we really have a shitty justice system here. I mean Brian Gorrel was quick and smart to realize he would not get his justice here through legal means. We’re not even close to realizing this in our current political situation.

    On the contrary, our libel laws are anti-truth, on a fundamental level, not anti-chismis. I mean how awful is it to define libel as a public statement that is “malicious” under our Penal Code. In most democracies, a libelous statement fundamentally means a falsehood.

  26. Larry Flint, publisher of Hustler porn magazine, is a hero to many because Flint’s court-case against a member of the elite and a highly-respected preacher further made clear the libel laws in the USA.

    Flint’s court-case made formal the right of the American citizenry to parody the powerful.
    ———
    Flint printed a full-page ad where, among others, “Falwell” describes his first sexual experience as occurring “with Mom” in an outhouse while both were “drunk off our God-fearing asses on Campari.” In the spoof interview, “Falwell” goes on to say that he was so intoxicated that “Mom looked better than a Baptist whore with a $100 donation,”…. and that they had intercourse regularly afterwards. Finally, when asked if he had tried Campari since, “Falwell” answered, “I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?”

  27. Madonna, yup. It was news to me too when it was explained in the blog. And from the responses of some commenters, it’s news to most everyone as well.

    I wonder why it is the way it is. I’ve watched Erwin Tulfo’s TV show and the guy just berates people on camera. He calls them gago and worse names. But where are the lawsuits? I think even Tulfo doesn’t realize he can’t hide behind the “truth.”

    Someone should really take this to the supreme court. It’s a literary writer’s duty, I believe, but most of our literary writers are cowards.

  28. U.S. Supreme Court Justice Anthony Kennedy issued this warning: “Once executive privilege is asserted, coequal branches of the government are set on a collision course.”

  29. Jon Mariano,

    “I know that you’re not a paid hack, even Manolo believes that. But you’re acting like one.”

    asus! you just found an excuse to use ‘paid hack’

    then i can also say ‘i know you’re not a paid hack also of the Genuine Opportunists, but you’re acting like one you know, actions speak louder than words’

    alam mo, napakababaw ng basis mo in identifying a paid hack – if someone differs from your view, or if the view is perceived to favor gloria, paid hack na kaagad!

    mahiya ka naman kay manolo!

    dont tarnish the quality of posts here!

    no comments of that sort here please!

    halatang di mo nababasa ang lahat ng posts ko – im even suggesting how to impeach gloria.

    pero ipagpipilitan pa rin ang people power! suntok sa araw yan!

  30. mlq3,

    … you do realize the house rules today are different from the house rules during estrada’s time, precisely to prevent another estradsa style impeachment, right?

    the provisions of the constitution are very clear:

    Art. XI –

    (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

  31. Between independent-minded be they co-equal (spouse and spouse) or not co-equal (e.g. teen-son and parent or parishioner and bishop) collision is matter-of-fact.

  32. Madonna: That was a good movie — Woody H can act, like he did in “No Country”. [Another person who always surprises me in his movies — Brad Pitt. This guy can act, too! I still remember Pitt in Snatch (directed by Guy Ritchie) — great acting. ]

  33. wtf? are we still all here? plodding along nicely with my prediction i see. come give me a poke when the first quarter breaks. i did say chacha will be ratified in july of this year. well, i know how cassandra felt. but unlike her, i won’t wait here for this one to be raped and killed.

  34. To me, it is risky to ask the 9 judges to review the same facts they had already seen and somehow expect the 9 judges to come up with a different conclusion. Unless you know that they were smoking marijuana when they deliberated.

    risky, you say? it’s damn well stupid! the senate obviously is in way too deep and way too clueless. ever watched “a few good men?” remember that scene wherein Demi Moore kept objecting to the judge not to let the doctor testify? she only stopped after the judge told her forcefully: overruled! the doctor is an expert in the subject and i will hear his testimony!

    you test a judge’s vanity at your own peril. obviously, asking the SC to “clarify” its decision is akin to asking them to reverse themselves which is akin to asking them to admit that they made a mistake in the ruling. wtf? will any sane sitting judge in the SC even agree to that? i bet you this next petition will be junked 100% by all SC judges. bec any SC judge worth his salt will not set precedent for the SC to admit fallibility!

    mamatay na ang lahat pero di aamin ang mga hukom na ito na nagkamali sila.

  35. “and this is the very real danger here, not precisely now, but increasing every time a major case comes up decided in a manner that further erodes confidence in the court.” mlq3

    there goes the mother of all tragedies in the philippines. it seems sportsmanship is a word that doesn’t exist in pinoy vocabulary. losers actually go to their grave convinced that they were “cheated” of victory, spending their whole life demonizing the authorities or institution that rendered the verdict as being under the control of the victor. these are the same losers who demand “closure”, or “truth”, all the while with no intention of accepting adverse outcome.

    critics of the neri decision seem to ignore the fact that the s.c. did not curtail the senate’s constitutional power of inquiry (1) in aid of legislation, and (2) in the exercise of it’s oversight function. what the s.c. did was to define the constitutional limits of this power as not embracing the power to investigate whether a crime has been committed and who committed it, and those that are properly within the executive privilege of the president, e.g., state secrets involving national security and diplomatic relations, etc.

    prior to the neri ruling, most senators appear to have no understanding of their limitations. some have subjected officials of a co-equal branch of the government to abusive, discourteous, humiliating and harassing treatment. some act like despotic inquisitors or police interrogators conducting a witch hunt, oblivious to traditions of decency and fair play.

    contrary to what administration critics say, every time the supreme court settles a constitutional controversy, it strengthens the state, not weakens it. when the court decides or resolves a case, it does not legislate or enact laws (as some imaginative but uninformed commenter suggests). it merely interprets and applies the provisions of what has already been enacted. the interpretation becomes part of the law of the land until subsequently overruled, or a contrary legislation is enacted.

    in every dispute, there are two opposing sides. the reason there is an arbiter is that neither side can make a decision that will resolve the matter with finality. but unless the loser respects and abides by the ruling, the controversy remains till hell freezes over.

  36. @ Devils,

    Are you advocating then of ColdKing’s version of a ‘final solution’?

    Reset or reformat.. .

  37. @Abe: I would think that all the Philippine Supreme Court judges put a lot of effort into analyzing the pros and cons of Neri-v-Senate. That you strongly disagree with them — the penalty of being a supreme court judge. Popularity is not and should not be their objective.
    But I will wait and see. I think that my position — no impeachable offense by any of the 9 judges — will be reinforced and that there will NOT be any Filipino citizen who files a complaint of impeachment.
    DJB did expect the decision to be reversed. And maybe DJB’s expectation becomes true after Congress enacts one or two new laws. I’ll make a mental note to see how history treats this decision : 2015 should be enough time.

  38. “there goes the mother of all tragedies in the philippines. it seems sportsmanship is a word that doesn’t exist in pinoy vocabulary.”

    What are you talking about? No one has stopped the SC decision…there is no civil disobedience against the ruling…all this talk is just analysing the decision.

  39. UP n,

    i have not read the whistleblower act draft bill, but does it contain a provision that ‘executive privilege’ cannot bar access to information?

    yes, a new law can effectively ‘reverse’ Neri vs. Senate

    only the paranoid believes that the 9 justices committed an impeachable offense

  40. anthony scalia, i sincerely doubt the legislature can reverse the s.c. ruling on a constitutional question. i think such a bill would be unconstitutional. i believe the only remedy is a constitutional amendment, or a new interpretation of the s.c. overruling neri v. senate.

  41. Bencard,

    i think the constitution is silent on executive privilege. as things stand now, only case law supports executive privilege. a later statute can effectively defeat executive privilege. but that could be another promising landmark case, the constitutionality of a law banning the use of executve privilege

    yet it cannot be denied also that all the reactions against the Neri decision are because of gloria, not on the validity of executive privilege per se. very situational. if the Neri case went the other way, future presidents are at the mercy of the legislature.

  42. Bencard,

    can it be said that ‘executive privilege’ lies within the penumbra of the powers of the executive (an implied power)?

  43. Bencard,
    The US Congress passed the first comprehensive whistle blower protection law in 1912 in response to Wm Howard Taft’s version of EO 464. The 2007 version has just been passed by the US House. It’s not a matter of reversing the SC ruling since only they can do that. But it would change the rules of the game they are playing, even if it cannot change the simple-minded.

  44. Anthony Scalia,

    Executive Privilege is an ELEMENT of Separation of Powers, like, no sodium, no salt.

    It is inextricably part of the powers of the Executive that it may withhold certain classes of information from the Congress. This is elementary.

    But does it mean that ALL information that falls in one of these classes, like presidential conversations, is privileged?

    No! There are exceptions to the exception: if the information is needed in a criminal court proceeding, if witholding it would impair the function of the Judiciary or Congress.

    As Dean Pangalangan clearly explained on Pia Hontiveros last night, there is a logical inconsistency between the unanimous Senate v. Ermita decision and the present 9-6 Neri v. Senate. In the former, the presumption is against secrecy, meaning the burden of proving that a given claim of privilege is valid belongs to the Executive. In the latter the privilege has been deemed “presumptive” meaning the burden of proving it is invalid belongs to the senate.

    Of the 9, two concurred without stating the facts or their reasoning. A third concurred did not even address “executive privilege” but merely assailed the power of the Senate to order an “arrest”. Renato Corona, former foot lackey of the President who never served a day on the Bench before he got to the Supreme Court, the present classmate of the audience in Pia’s show who were from the UST College of Civil Law, based his “ruling” on some silly word play regarding the meaning of a Senate warrant of “arrest” and a distinction with “detention”. Must be his essay question answer on last week’s pop quiz at UST…(It’s an insult to UST!)

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