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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. 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. – Bencard

    This is so true.

    I read a blog written by an American living in the Philippines warning all expats not to get into an argument or a fight with a Pinoy in a bar.

    If said Pinoy gets his arse kicked and (as such) loses ‘face’ he’d usually comes back with some pals to “even the odds” (an apparent inability to lose gracefully, kung baga).

    Maybe that is why Pinoys have one word to describe this behaviour — pikon — because it is so typically Pinoy.

    Another time a Pinoy acquaintance of ours who was chatting with another friend in Church (as most Pinoys do) was asked politely by someone next to her to shut up. Needless to say she confronted the person at the end of the mass outside to tell him to mind his own business next time.

    Talaga naman oo. Proud to be Pinoy nga naman.

    And you guys wonder why these things happen in this and that venerable hall of justice, hall of legislation, or hall of execution. We fail to realise that this behaviour is DEEPLY ingrained into the very psyche of our society.

    It’s simple, really.

    Galeng talaga ng Pinoy!

    – 😀

  2. UPN,
    I now doubt that the ruling will be reversed because Judicial Privilege is next up. Billions of pesos in big low profile cases have been decided by this court. They’ve plenty to hide themselves, I reckon. Remember that there are 15 impeachable constitutional officers there, by far the most of any branch. Most people don’t even know their names. I don’t! If not doing their duty isn’t impeachable i don’t know what is, but a million case backlog in the judiciary is shameful. Yet Corona has time to go to grad school? Yecch! In 2002 the choice was between Pangalangan and Corona to the SC.

    While America is busy at elections would be a good time to impose martial law using the rice and oil crisis as a pretext. That is why the Palace is hyping it so much. What do the Masses care? they can’t eat Constitutions.

  3. Side-note: Year-Zero Mugabe is teetering. His own inner circle of advisers, recognizing that the population is decisively against Mugabe’s style governance,

  4. Side-note: Year-Zero Mugabe is teetering. His own inner circle of advisers, recognizing that the population is decisively against Mugabe’s style governance, have begun sending feelers to find an exit.

    With evidence increasingly clear that Mugabe came in second, news reports and other sources said members of the president’s camp have reached out to the opposition in search of a deal that would allow Mugabe to step down gracefully, while avoiding prosecution for any crimes committed while in office.

    “It’s clear that he has lost the vote,” said Zimbabwe Independent political reporter Dumisani Muleya, who said he had conversations Tuesday with several senior advisers to Mugabe. “They’re trying to find some way to resolve this issue.”

    Mugabe, 84, who has ruled Zimbabwe since its founding in 1980, has been under intense diplomatic pressure since Saturday’s vote to step down. Prime-minister-for-life is an oxymoron. The prime minister is just another name — another party member — who will be asked to exit by his own party when the largest moon of Jupiter lines up with Pluto and Neptune. [Mugabe’s land reform — total failure. Mugabe’s class warfare — total failure.]

    Here is hoping that some military or religious opportunist does not send people-fodder to take advantage of the Zimbabwe mess.

  5. DJB,

    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.

    are these exceptions present?

    there’s no pending criminal proceeding nor ombudsman investigation (this is where US vs. Nixon differs greatly)

    is legislative function impaired by the wall of executive privilege in Neri’s situation?

    No

    Its already obvious that gloria gave the go-signal despite receiving Neri’s warning of an Abalos bribery attempt

    Our bright senators do not need the answers to the first two questions to craft the intended legislation for which the circus, er senate hearings on NBN ZTE, were being conducted.

    did gloria follow-up and/or order that the NBN ZTE project be prioritized? our bright senators can presume those as fact and proceed to make the necessary law/s!

    as to what those necessary law/s is/are i don’t know, as i have to defer to the ‘collective wisdom’ (ugh) of the legislature

  6. as to what those necessary law/s is/are i don’t know, as i have to defer to the ‘collective wisdom’ (ugh) of the legislature – djb

    What is this “collective wisdom” of a popularly-elected legislature REFLECTIVE of nga ba?…

    – 😀

  7. I read a blog written by an American living in the Philippines warning all expats not to get into an argument or a fight with a Pinoy in a bar.

    If said Pinoy gets his arse kicked and (as such) loses ‘face’ he’d usually comes back with some pals to “even the odds” (an apparent inability to lose gracefully, kung baga).

    Maybe that is why Pinoys have one word to describe this behaviour — pikon — because it is so typically Pinoy.

    Another time a Pinoy acquaintance of ours who was chatting with another friend in Church (as most Pinoys do) was asked politely by someone next to her to shut up. Needless to say she confronted the person at the end of the mass outside to tell him to mind his own business next time.

    generalization. generalization. the equivalent of cocktail hearing syndrome. nag-cite lang ng examples, conclusion na kaagad.

    not the way to raise an argument, mate. you need an arbiter.

  8. generalization. generalization. the equivalent of cocktail hearing syndrome. nag-cite lang ng examples, conclusion na kaagad. – inidoro

    That’s up to you how you CHOOSE to interpret it, dude.

    I choose to interpret it that way.

    Just like democracy is the opiate of the masses, denial is the opiate of the imprisoned mind.

    – 😀

  9. Benigno,

    Regarding your acquaintance who chatted in Church; how did you intercede in that instance? Did you “correct” your acquaintance?

  10. Two quotes from Mark Twain:

    1. “Denial ain’t just a river in Egypt.”

    2. “Twenty years from now you will be more disappointed by the things that you didn’t do than by the ones you did do. So throw off the bowlines. Sail away from the safe harbor. Catch the trade winds in your sails. Explore. Dream. Discover.”

  11. Federal Accountability Act and Action Plan – Commitments and Actions
    Commitment:
    Provide real protection for whistleblowers
    Actions:
    A Public Sector Integrity Commissioner with the power to enforce the Public Servants Disclosure Protection Act.

    A new, independent tribunal with the power to order remedies and discipline.

    Expanded whistleblower protection for all Canadians who report government wrongdoing.

    More public information on wrongdoing.

    Commitment:
    Strengthen access to information legislation:
    Actions:

    Expansion of Access to Information Act coverage to include:

    Seven Agents of Parliament: the Offices of the Information Commissioner, the Privacy Commissioner, the Commissioner of Official Languages, the Chief Electoral Officer, the Auditor General, the Public Sector Integrity Commissioner, and the Commissioner of Lobbying;

    The remaining parent Crown corporations including: Canada Post, Via Rail, the Canadian Broadcasting Corporation, Atomic Energy of Canada, Export Development Canada, the National Arts Centre, Canada Pension Plan Investment Board, and the Public Sector Pension Investment Board, as well as wholly-owned subsidiaries of all Crown corporations;

    The Canadian Wheat Board; and

    Five foundations: Asia-Pacific Foundation of Canada, Canada Foundation for Innovation, Canada Foundation for Sustainable Development Technology, Canada Millennium Scholarship Foundation and the Pierre Elliott Trudeau Foundation.

    The above commitments and actions plan which were already enacted into laws were amendments to already existing laws to further strengthened them and expand the protection and coverage as a result of Aid to Legislation Inquiry into the Sponsorship Scandal…it is just a small part of the Total Reform…
    Congress should start drafting laws to strengthen Whistle Blowers Protections and Expand Access to Information Act to counter the the effect of SC rulings which only pertains to specific statutes which in effect invalidate some outstanding law.
    .

  12. Bencard, benigno,

    Funny because just a while ago I just told my cousin-in-law over dinner that I that we, pinoys, just have learn how to accept defeat gracefully and sincerely……

  13. “are these exceptions present?

    there’s no pending criminal proceeding nor ombudsman investigation (this is where US vs. Nixon differs greatly)

    is legislative function impaired by the wall of executive privilege in Neri’s situation?

    No

    Its already obvious that gloria gave the go-signal despite receiving Neri’s warning of an Abalos bribery attempt

    Our bright senators do not need the answers to the first two questions to craft the intended legislation for which the circus, er senate hearings on NBN ZTE, were being conducted.

    did gloria follow-up and/or order that the NBN ZTE project be prioritized? our bright senators can presume those as fact and proceed to make the necessary law/s!

    as to what those necessary law/s is/are i don’t know, as i have to defer to the ‘collective wisdom’ (ugh) of the legislature”

    you got that right..

    the senators are really, really, really stupid to wait for the answers to these questions before coming up with laws to counter the flaws that they find on the circumstances surrounding the deal..

    i mean why wait? even a mere foresight of a flaw or possible wrongdoing can be a cause for legislation.. so why do they have to ask neri on what they previously know?

    oh wait.. they want it to come out from neri’s mouth to COME UP WITH LEGISLATIONS right?!

    or am i too naive to assume that?

  14. Liam, in your opinion, can such presumption in the affirmative then be used as basis for the removal of Gloria Arroyo?

  15. thats the point cvj,

    the senate is not conducting investigations in aid of legislation,
    but they are warping and converting the process into a criminal investigation in public, without rules, without boundaries, and without liabilities to those who persecute.

  16. Liam, are you suggesting that we compartmentalize that fact as inferred from Neri’s refusal to answer, i.e. consider it true for the purpose of future legislation, but consider it false for the purpose of determining wrongdoing on the part of Gloria Arroyo?

  17. Liam and Anthony Scalia agree that the senators are not doing a good job. I too agree that they (the senators) could have done better (the game is not yet finished so they an still redeem themselves).

    As far as the senators and even the congressmen are concerned, they have their own agenda and people do not necessarily have an influence on them just like Gloria Arroyo disregarding the surveys when they’re negative and basking on the positive.

    As individuals though, forums like this, help us form opinions or strengthen the ones we already have or correct the wrong ones.

    For example, I still would like to know what role Gloria Arroyo played in the now scrapped NBN/ZTE deal. So far, all avenues has been closed for me to know what really is the deal. So I’m waiting for the right thing to do to manifest itself and while waiting, I’ll do what I think is best.

  18. I choose to interpret it that way.

    tell you what:

    when you say typically pikon (note you’re choice of word here: typically), have you conducted a survey of human behavior involving various nationalities, and be able to point out from the normal distribution curve that that pinoy behavior is outside the +/- 95% confidence interval to be able to conclude what is “typical” of pinoy? or are you using your own pinoy lens to merely describe your myopic view of what is “typical” of what you’ve seen, given your limited perspective?

    you can only have an objective “interpretation” if you’ve got reliable and valid data to support your claim. otherwise, its rash judgment on your part. it’s not internally valid because you’re a bias observer. that diminishes the value of your “interpretation”.

  19. benigno, rego,inidoro,

    ahem.

    there is a criminal investigation ongoing in the Ombudsman into the activities of one, Ben Abalos, including the attempted bribery of Romulo Neri, a crime Romulo Neri attested to under oath and over which Ben Abalos resigned as Comelec chairman.

    ahem2.

    Dean Raul Pangalangan reminds the tv audience last night on Pia Hontiveros’ show (ANC) that the discovery of the existence of the Nixon White House tapes came during some minor, preliminary questioning of the House committee’s counsel when it was simply offered as a fact by White House staff that the President had them install taperecorders all over the Oval Office the year before.

    By parity of reasoning, the sworn testimony of Romulo Neri on Sept 26 in open session that an act of apparent ATTEMPTED BRIBERY was committed is equivalent to that discovery because testimony under oath IS evidence that ought to be weighed in a criminal procedure.

    The small, insignificant fact that some people had received work orders to put in tape recorders in an office, brought down the US President!

    That fact was discovered in a proceeding preparatory to the Senate investigations into Watergate. It merely pointed to the possibility of recorded conversations that might or might not be relevant in some future (and then nonexistent criminal trial).

    The same possibility that there may be conversations, material and relevant to the alleged crimes in ZTE was revealed by the testimony of Neri.

  20. you can only have an objective “interpretation” if you’ve got reliable and valid data to support your claim. otherwise, its rash judgment on your part. it’s not internally valid because you’re a bias observer. that diminishes the value of your “interpretation”.
    =======================================================

    But why gather data when its already there? Election after election, its very very rare that you find a candidate that concedes defeat. Almost all loser claims loser. Even the latest decision of SC on Neri is very very obvious. Even the Cheif Justice doesn’t even know how to accept the defeat graciously.

  21. @cvj

    yes.

    the senate can act on a presumptions for purposes of legislation.

    The courts interpret the laws and determine whether a wrong has been committed, and as far as i know, it is not an avenue for criminal investigations

    it is clear cvj that you are unable to separate the Presidency as an institution from the current Presidenct. If you or the senate really wants to get laws out of this mess which will prevent said flaws from occurring in future administrations, you would stop from that question, assume all possible answers and counter it by formulating provisions that will work to that effect.

    what you imply and what the other senators are doing now is that, with your immense hate towards the current administration, you are ready and eager to undermine the institution of the Presidency by attacking its functions, powers and prerogatives, show it in bad light to the public, and do the unspeakable wrong of incorporating the institution to a person.

    crafting laws to strengthen institutions are one thing.
    destroying institutions for the sake of removing a personality is another.

  22. anthony scalia,
    does your logic hold and conclusion remain the same, given that your premise (“no criminal investigation in the Ombudsman”) has just been shown to be false?

    (I know it does, because you are an honorable man. So onward…)

    True SCOTUS has never adjudged a case that pitted Presidential Executive Privilege and Congressional Power of Inquiry. The reason, from my reading of the US Congressional Oversight Manual, is that NO U.S. President has ever allowed it to get that far, and that in every case has somehow either given up the information to Congress, or convinced it that the reasons were in the national interest not to divulge!

    But the very present moment, and this case of Neri v. Senate, is, as Carlos Medina remarked on TV last night, the historic opportunity of SCORP to venture into those uncharted waters of human jurisprudence and illuminate the way forward for perhaps even the United States itself, where Bush has certainly come close and may be the first in some future case like US v. Bush!

    I think the GRAND principle that we as the Philippine Jurisdiction can add to the edifice of Human Law is very similar to that of US v. Nixon.

    There (US v. Nixon) it was decided that evidence in a criminal proceeding cannot be denied to the Judiciary because it would impair their essential function and duty to do Justice.

    The Judicial Power has priority over Executive Privilege.

    As you must acknowledge, a piece of the Judicial Power has been separated out from the Judiciary and given to the Legislature in the matter of impeachment, the sole and exclusive power of the Congress.

    It is a very small piece of the Judicial Power being applicable only to 31 individuals in the entire one million man Philippine govt.

    And it does not even apply to their personal liberty or culpability as such, since the only possible outcome of the exercise of the judicial power of the Congress is the removal henceforward from public office of such persons.

    No jail. No criminal sanctions as such.

    Yet to deny it to congress would surely impair its ability to do PUBLIC ACCOUNTABILITY of the 31 highest officials fo the land, including the Supreme Court justices themselves.

    Thus the unerring conclusion I come too is that Neri v. Senate is null and void because it is a decision that inevitably protects the Justices themselves from the scrutiny of Congress!

  23. Liam, when you say we should ‘assume all possible answers’, does that mean that the Senators should take it that Neri answered ‘Yes’, ‘No’, ‘Maybe’ and ‘I don’t know’ to those 3 questions and proceed to propose legislation on the basis of all those twelve [3 questions x 4 possible answers] presumptions?

  24. you can only have an objective “interpretation” if you’ve got reliable and valid data to support your claim. otherwise, its rash judgment on your part. it’s not internally valid because you’re a bias observer. that diminishes the value of your “interpretation”. – inidoro

    Dude, thanks for your cvj-esque approach to letting eveyone here know how conversant you are with hypothesis-testing statistical methods (see? i’m doing it too. i’m Pinoy after all. 😀 ).

    But I think a blog is hardly a venue for applying mathematical rigour to evaluating commentors’ assertions.

    I make this assertion as a matter of opinion. If you think it is an over-generalisation, then that’s YOUR opinion. Why don’t YOU come up with something that substantiates your differing with my opinion then?

    Counter arguments such as yours are typical of a mind in denial…

    [Side note: Note that I am now I’m making a generalisation based on your comment on a prior generalisation I made. This illustrates how discussions of this sort and at this nitpicking level tend to become convoluted (which makes one wonder less about why Pinoy-style discussion is as convoluted as it is — hey! here’s another generalisation from me for you to comment on!)]

    … You assert something that is INTUITIVELY evident:

    ball bearings are spherical in shape

    and some bozo comes up with:

    but if you examine a ball bearing with an electron microscope, you will find that micropscopic irregularities on its surface cause variations in measurements of its radius at different points in said surface therefore invalidating the claim that ball bearings are spherical

    Real classy, dude.

    It spells the difference between engineering students trained to pass board exams, and those who finish university understanding what engineering is really all about.

    – 😀

  25. sorry cvj but i dont know how 64 came to be..

    the answer to your question would be yes. for it is the role of the senate to exhaust all possible measures and explore all angles to ensure that the law shall cover all the defects foreseen.

  26. Liam, the 64 presumptions was computed by working out all the possible combinations of answers (‘yes’, ‘no’, ‘maybe’, ‘don’t know’) that Neri is presumed to have given:

    Presumption 1:
    Question 1- Yes
    Question 2- Yes
    Question 3- Yes

    Presumption 2:
    Question 1- Yes
    Question 2- No
    Question 3- No

    Presumption 3:
    Question 1- Yes
    Question 2- Yes
    Question 3- No

    …and so on and so forth. So if the Senate goes about that process, how do you suggest the lawmakers prioritize among those presumptions,or do you think there is no need to prioritize?

  27. cvj, one only has to assume the damaging elements of the answer to these questions to come up with solutions to counter them.

    wow.. amazing..

    i have to admit that your mathematical prowess is impressive, but are you really serious that a variation in the answers to these statements will lead to a different outcome?

    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?

    your mathematical logic and the formula you utilized is flawed as to use exponential multiplication for each question must entail relationship. in this case no such relationship to each question exists, for each question has its own implications and issues independent of the answers to all other questions.

    indeed, benigno is right, there is a difference, a REALLY BIG DIFFERENCE, between engineering students trained to pass board exams, and those who finish university understanding what engineering is really all about.

    what a perfect example.

  28. there is a difference, a REALLY BIG DIFFERENCE, between engineering students trained to pass board exams, and those who finish university understanding what engineering is really all about. – Liam Tinio

    Same thing also applies to lawyers, it seems.

    There are the Bar top-notchers;
    And then there are those who really understand what the Law is all about.

    – 😉

  29. cvj,Liam,

    if the senate is really after legislation against corruption, especially the fact-based legislation alluded to by cj puno, then neri’s answers would be really useless. remember that neri was the object of abalos’s bribery offer, meaning, he is not an insider. what they will end up with will just be speculations.

  30. liam:

    but this is cvj here, in proving his points he will gladly take you down to the mathematical nitty-gritty, hoping that you concede as he “turns up the math”.

  31. but this is cvj here, in proving his points he will gladly take you down to the mathematical nitty-gritty, hoping that you concede as he “turns up the math”. – tonio

    It’s no different to what lawyers do.

    They drag people down to the nitty gritty letter of the Law (the comfort zone afforded them by their formal Law training) and lose you in the detail. This then makes them “indispensible” in the ensuing discussion.

    It’s like a forest ranger luring a city-slicker into a forest, then charging an atrocious sum to guide the poor sop back into civilisation.

    Kaya nga the secret to a life of clarity is to get your PRINCIPLES straight.

    Any discussion on the small-minded world of the nitty gritty is pointless if it is not undertaken on top of a robust grounding on SIMPLE principles.

    As I say:

    It’s simple, really. 😀

  32. haha

    but of course, we already know that.

    namumuro na kasi ang senado, not only do they want GMA out of office, they also want to insert an expansion on legislative powers along the way.

    nice try.

  33. “indeed, benigno is right, there is a difference, a REALLY BIG DIFFERENCE, between engineering students trained to pass board exams, and those who finish university understanding what engineering is really all about.”

    Ngek. Oh the limitations in your logic. Difference my foot. You failed to mention: The latter who understand what engineering is all about will easily ace the board exams. In the same manner the ones who pass the board exams are more likely the ones who understand what engineering is all about.

    Passion and knowledge are inseparable if one is to be respected for his or he opinion. Passion, for one’s dedication to rigorous details (the key to inductive reasoning) and knowlege for having an insight to general principles (deductive reasoning).

    Actually, intellectual obfuscation or intellectual deceit requires no expertise to detect. Naku, even a child can even detect if adults are talking BS.

    Why speculate on the answers of the three questions? Kaya nga kailangan itanong e. Further speculating on the speculations that will apparently ensue after the questions is just a silly exercise.

    So what if there will be further questions that need to be answered after the 3 questions are answered? At least there will be progress, step by step. That’s the way of science anyway. More knowlege, leads to further knowledge to be discovered.

  34. You failed to mention: The latter who understand what engineering is all about will easily ace the board exams. – Madonna

    Think of it this way.

    It’s possible for a child to MEMORISE a multiplication but not understand the principle of multiplication itself.

    Then there are kids who understand the principle of multiplication and as such find no need to memorise said multiplication.

    The difference between the two becomes apparent later in life.

    Within the narrow and often misguided performance measurement framework of the current approach to educating kids, rote memorisers easily ace the limited designs of current testing methods.

    But it is in the broader professional world where groundbreaking results are achieved through imagination and innovation, where the mediocre minds and truly great minds are distinguished.

    It’s simple, really. 😀

  35. Madonna, it’s true there is a difference between training for the board exams, and the real engineering education. but i think all engineers go through both.

    the reason why we need to speculate on the answers to the three questions, is that to overcome executive privilege, the answers need to have some value in the crafting of legislation. if it cannot add value, then i think the executive privilege will stand.

  36. BEnigno,

    You are taking an either-or approach to this issue. Going in your reductionist mindset again. As I said scientific learning is both concerned with details and principles. Both are needed to discover more, which is the whole point of science — progress.

    At some point during a child’s learning, he may want to memorize the simple multiplication sets (1×1=1, 2×2=4, etc.) for easier recall, not because he is a dumbo who does not understand the principles of mathematics.

  37. [quote]your mathematical logic and the formula you utilized is flawed as to use exponential multiplication for each question must entail relationship. in this case no such relationship to each question exists, for each question has its own implications and issues independent of the answers to all other questions.[/quote]

    madonna, i really wonder why we deviated towards your topic when the only contention i have is that there is a flaw in the use of mathematical logic by cvj

    i mean how can an equation (X^n), used to know the number of lotto combinations, be applied to these 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?

  38. [quote]the reason why we need to speculate on the answers to the three questions, is that [b]to overcome executive privilege, the answers need to have some value in the crafting of legislation. if it cannot add value, then i think the executive privilege will stand.[/b][/quote]

    quoted for correctness

  39. the reason why we need to speculate on the answers to the three questions, is that to overcome executive privilege, the answers need to have some value in the crafting of legislation. if it cannot add value, then i think the executive privilege will stand.

    retrying.. phbb-html

  40. “the reason why we need to speculate on the answers to the three questions, is that to overcome executive privilege, the answers need to have some value in the crafting of legislation.” — mindanaon

    The value is obvious di ba (at least to me)? It will establish in this particular case the limits or prerogative of presidential power in forging agreements with countries (in this case the loans from China to fund infra projects) that overstep legislative power to oversee fiscal or budgetary allocations. Doesn’t the NBN project and other similar projects would lead to a time when the public would be paying for the loans?

    The legislature has the overight power right? Now, the case of Neri vs. the Senate could either lead to crafting new laws or amending new ones that are pertinent to the said project based on the conclusions derived from the answers to those three questions.

    That’s my simple understanding of the case as a tax-paying citizen of this country. To put it simply, I want to know that laws are in place wherein it will be guaranteed that maximum returns are acheived in whatever projects the government undertake in excange for my taxes.

  41. Madonna, i will have to agree that the questions have ‘pertinence’ in the way you relate it with forging agreements. that’s how cj puno saw it. but as to value, those questions can best be answered by the president herself. what you can get from neri’s answers will only be impressions and speculations.

  42. You are taking an either-or approach to this issue. Going in your reductionist mindset again. As I said scientific learning is both concerned with details and principles. Both are needed to discover more, which is the whole point of science — progress. – Madonna

    That’s true of course.

    But this thread of discussion came about as a result of some people who tend to swing towards the earlier side of the either-or you point out.

    So there was a context before you jumped in.

  43. Benigno,

    Pardon for my lapse in seeing the whole context.

    Mindanaon,

    “but as to value, those questions can best be answered by the president herself. what you can get from neri’s answers will only be impressions and speculations.”

    How can you seriously say this? Don’t you get it, it’s clear as a summer’s day, you are the one speculating here.

    Let’s hear what Neri has to say first, and then we can jump on to other measures, and conclusions. Neri is a principal to the transactions between the President and himself. Unless the President was dancing on her own. Or Neri on his own. Somebody sought approval, somebody signed, somebody said go ahead. There were at least two parties, not just one. GMA will not answer these answers categorically, but Neri can.

    By golly aren’t these obvious?

    The 9 justices who sided with Neri are clear-cut crooks in my eyes. It’s a simple case of obstruction of the truth and justice — in aid of legislation.

  44. Liam, i agree that there is room for bringing down the number of presumptions by filtering out unrealistic or irrelevant combinations but this process takes some effort and time as well. Nothing beats not having to guess at the answers because as Madonna has pointed out…

    Why speculate on the answers of the three questions? Kaya nga kailangan itanong e. Further speculating on the speculations that will apparently ensue after the questions is just a silly exercise.

    So what if there will be further questions that need to be answered after the 3 questions are answered? At least there will be progress, step by step. That’s the way of science anyway. More knowlege, leads to further knowledge to be discovered.. – Madonna

    A system that is prevented from being grounded on reality puts its survival at risk. That’s why i’m very concerned with the smoke and mirrors of this Administration which favors appearance over reality.

  45. madonna,
    a)Whether the President followed up 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?

    you can’t get much insight from ‘yes’ ‘no’ answers to these questions. so let’s allow cj puno, in his dissenting opinion, distill the questions for us : “The three questions demand information on how the President herself weighed options and the factors she considered in concluding the NBN-ZTE Contract”. (emphasis added)

    now, tell me, who is in the best position to answer the questions?

  46. DJB,

    does your logic hold and conclusion remain the same, given that your premise (”no criminal investigation in the Ombudsman”) has just been shown to be false?

    ****clears throat****

    do they (ombudsman people) need Neri’s answers (to the 3 questions) in the criminal investigation/s of Abalos? answer this and i will answer your question ‘does your logic and hold and conclusion remain the same…’

    True SCOTUS has never adjudged a case that pitted Presidential Executive Privilege and Congressional Power of Inquiry. The reason, from my reading of the US Congressional Oversight Manual, is that NO U.S. President has ever allowed it to get that far, and that in every case has somehow either given up the information to Congress, or convinced it that the reasons were in the national interest not to divulge!

    noted

    But the very present moment, and this case of Neri v. Senate, is, as Carlos Medina remarked on TV last night, the historic opportunity of SCORP to venture into those uncharted waters of human jurisprudence and illuminate the way forward for perhaps even the United States itself, where Bush has certainly come close and may be the first in some future case like US v. Bush!

    your source, Caloy Medina, is a biased source. anyway, noted

    I think the GRAND principle that we as the Philippine Jurisdiction can add to the edifice of Human Law is very similar to that of US v. Nixon

    noted

    There (US v. Nixon) it was decided that evidence in a criminal proceeding cannot be denied to the Judiciary because it would impair their essential function and duty to do Justice

    noted. thats why Nixon had to surrender the tapes, because of a pending criminal proceeding – the tapes were essential in the prosecution of the accused.

    The Judicial Power has priority over Executive Privilege

    oh really? theres no case law on that

    As you must acknowledge, a piece of the Judicial Power has been separated out from the Judiciary and given to the Legislature in the matter of impeachment, the sole and exclusive power of the Congress

    thats because impeachment is more of a political than a judicial exercise!

    It is a very small piece of the Judicial Power being applicable only to 31 individuals in the entire one million man Philippine govt

    noted

    And it does not even apply to their personal liberty or culpability as such, since the only possible outcome of the exercise of the judicial power of the Congress is the removal henceforward from public office of such persons.

    noted

    Thus the unerring conclusion I come too is that Neri v. Senate is null and void because it is a decision that inevitably protects the Justices themselves from the scrutiny of Congress!

    tsk tsk tsk too bad the senate cannot claim that the decision is null and void

  47. “you can’t get much insight from ‘yes’ ‘no’ answers to these questions. so let’s allow cj puno, in his dissenting opinion, distill the questions for us : “The three questions demand information on how the President herself weighed options and the factors she considered in concluding the NBN-ZTE Contract”. (emphasis added) —

    What makes you sure after the either yes or no answers, that senators will not ask pertinent follow-up questions for Neri to qualify or clarify his answers? Unless, NEri invoke executive privilege again. Then we move to another motion. Step by step. That’s the way to go about it.

    Again, insight? We have to get answers first before we go gunning for conclusions, and not speculate.

    …”how the Predsident HERSELF”…

    Why the fascination for the single word, “herself”. Take into the whole meaning of the line. It still points to the fact that Neri, being one of the pricipal parties involved can shed light on how the President “weighed” her options.

    Obvious ba, Gloria will not categorically answer the questions, so we are compelling Neri, one of the principals.

    By the way, was the emphasis yours on the word “herself” or Chief Justice Puno’s?

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