Wrote Montesquieu in The Spirit of the Laws,
…it is likewise a shocking abuse to give the appellation of high treason to an action that does not deserve it. By an imperial law it was decreed that those who call in question the prince’s judgment … should be prosecuted as guilty of sacrilege. Surely it was the cabinet council and the prince’s favorites who invented the crime. By another law, it was determined that whosoever made any attempt to injure the ministers and officers belonging to the sovereign should be deemed guilty of high treason, as if he had attempted to injure the sovereign himself. This law is owing to two princes remarkable for their weakness-princes who were led by their ministers as flocks by shepherds; princes who were slaves in the palace, children in the council, strangers to the army; princes, in fine, who preserved their authority only by giving it away every day…
“[P]rinces who were slaves in the palace, children in the council, strangers to the army; princes, in fine, who preserved their authority only by giving it away every day…” This was how I began my column Scorched-earth governance, in October, 2005 in reply to those who claimed they admired the President because she’d strengthened the presidency.
My column for today, The destruction of the presidency, essentially updates the point I raised then, with five examples that have taken place since then: the foiled attempt to proclaim martial law in 2005; the foiled attempt to turn a proclamation of a state of emergency into a kind of martial law in 2006; the derailing of the President’s expected declaration she would revoke E.O. 464 by Secs. Ermita, Favila, and Mendoza a few weeks ago; and the reckless handling of our country’s relations with the United States (our international obligations abandoned because of a kidnapping) and China (every bilateral agreement mired in the quicksand of controversy) which have will have grave effects for the duration of this administration and perhaps for some administrations to come.
Yesterday I pointed out that some lawyers were comfortable with the Supreme Court’s decision, because it wasn’t a doctrinal one; but what the Supremes might have intended is different from what the consequences of the decision, this early on, have already been. Today’s Inquirer editorial, Presumptuous, points to a concrete example of the law of unintended consequences at work. A lengthy extract is called for:
Are all Senate inquiries void, because the rules of procedure governing them have not been recently republished? …Romulo Macalintal drew the sweeping conclusion soon after the controversial Supreme Court decision in Neri v. Senate Committee came down.
The day after Macalintal did so, it was Executive Secretary Eduardo Ermita’s turn to extrapolate from the new ruling. Officials of the Executive Branch will skip future inquiries, he said, because they can be considered to be legally invalid.
It is difficult to imagine any member of the Supreme Court expecting the decision in the executive privilege case filed by Romulo Neri to lead to this exact turn of events. No one so much as suggested that the Senate stop all its inquiries, because of the failure to publish the rules. Inquiries in aid of legislation are not only expressly provided for in the Constitution; they are fundamental to the work of both houses of Congress. What the majority voided were only the Senate’s contempt citation and arrest order against Neri.
But the law of unexpected consequences is unforgiving. There is no appeal.
There is no appeal, if the Executive Branch itself encourages the wrong interpretation of a controversial decision. “All along the Senate has been conducting its hearings but it turns out they have yet to publish their rules of procedure,” Ermita said. “So, it turns out all their hearings can be considered constitutionally infirm.”
In fact, the Supreme Court did not say this. It had limited itself to the “subject proceedings”‚ – that is, the hearings being conducted by three Senate committees on the National Broadband Network scandal, in the inquiry Neri testified in.
If in fact all Senate inquiries are invalid, what happens (to choose one legislative measure the Arroyo administration wants passed) to the Japan-Philippines Economic Partnership Agreement? By Ermita’s vested-interest logic, the hearings conducted on JPEPA must be considered to be constitutionally infirm too.
Ermita said his legal team had prepared the opinion behind the recommendation that Senate inquiries be skipped. We think Ermita’s opinion, because it was transparently tailored to fit the recommendation, is not only presumptuous, it is dangerously presumptuous.
Here’s the crux: The administration argues “presumption of regularity” when its actions are questioned or limited or even voided by the courts. But it does not extend the courtesy of the same principle to the Senate. By extrapolating a conclusion favorable to its political fortunes (that is, avoid Senate inquiries), the administration demonstrates a barely concealed contempt for a co-equal but inconvenient branch of government. If, as the administration believes, presumption of regularity were the touchstone of democratic governance, then surely (by the administration’s own logic) it must apply to other agencies of government?
Again: there are those undisturbed by the recent Supreme Court ruling, because they want to give the high court the benefit of the doubt; and refuse to see, or cannot see, why lawyers and other segments of the citizenry are alarmed. See, for example, the statement by Simbahan Lingkod ng Bayan.
But going beyond this particular president, the problem is that derailing the constitutional balance in this manner means that even if the President steps down in 2010, the harm she’s caused will endure for some time to come; it means, at the very least, that much of the energies of a new administration and new Congress will be spent on restoring constitutional balance -or, if the new president enjoys the Arroyo legacy of impunity, to continuing confrontations between institutions.
Rene Azurin, in his Business World column for today (unavailable online, so reproduced in full), has this to say:
René B. Azurin
A captured government
Not being a lawyer, I imagine I can be forgiven if I do not pussyfoot around with legal niceties and just call the Supreme Court decision that granted the President and her minions the power to conceal crimes under the guise of “executive privilege” downright disgraceful. Let me add that I think this could indicate that there are nine Justices willing to bend over for the President when it counts. This could also indicate that the capture of government by the present ruling group is now complete.
With a generally subservient bureaucracy and a majority of the members of Congress firmly in the President’s pocket (pocketbook), control of the Supreme Court would certainly be the final element needed to render the President and her cronies invulnerable and untouchable, no matter what they do. The ramifications of the recent 9–6 Supreme Court vote in favor of the President should thus give us all pause. Keeping in mind that 12 of the 15 Justices of the Supreme Court are already appointees of this President and the remaining 3 will also have been appointed by her before her term is supposed to end in 2010, the question must definitely be asked: is the Supreme Court still independent?
Given the executive privilege decision, the answer appears to be “no”. The arguments made by the majority give the impression that their decision was made first and then a legal basis was sought to justify it. Without going in detail into the legal issues — law luminaries can do that — I feel that the essential weakness of the majority’s decision that former Cabinet member Romulo Neri did not have to answer, on the grounds of “executive privilege”, certain questions put to him by the Senate in its investigation of the anomalous ZTE Broadband deal is that it argues that the confidentiality of communications between the President and her subordinates — even when these have not been shown to compromise national security or diplomatic relations and even when the President herself admits to being aware that this merely commercial matter involves a crime (bribery) — trumps the public’s right to know and, thereby, hold public officials to account.
In his dissent, Justice Carpio says that “even if questions call for the disclosure of confidential presidential discussions or diplomatic secrets, executive privilege still cannot be used to cover up a crime”. That, I think, should be indisputable if public interest and fairness were used as the foundations for framing the decision. Moreover, as some Justices point out, executive privilege is actually only an implied prerogative of the President and not expressly granted as a presidential power. In contrast, express constitutional provisions state that “the State adopts and implements a policy of full public disclosure of all its transactions involving public interest” and that “the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption”. What the majority Justices’ stand means, therefore, is that they believe that an implied presidential prerogative takes precedence over explicitly stated provisions to safeguard the interest of the public against officials prone to abusing their considerable power.
That makes the decision disgraceful. In effect, it would seem that the Supreme Court majority deliberately opted to take the side of the President against that of the entire community. They did not have to rule in favor of the invocation of executive privilege since they could just as easily have taken the position against it. In fact, the arguments used to support the majority position seem weaker and more legally convoluted than the straightforward logic of the dissenting opinions that argue the primacy of the public’s right to transparency in the exercise of government power.
The Justices who favored the President are saying that the Executive branch of government needs to be even more powerful than it already is and less accountable to the public than it has ever been. This suggests that those Justices want to tilt the balance of power in this country even more in favor of those with already enormous amounts of power and even more against those without any power at all.
If that is the new reality that the Filipino public faces today, it means that we citizens must now live with a system wherein we no longer have any practical means of checking the power of our highest government officials. The two branches of government — the Legislative and the Judicial — that were designed to counterbalance and constrain the tremendous power vested in the Executive branch will now have to be deemed compromised. The public has long realized, of course, that the majority of our Representatives and a good number of our Senators will not act against the President’s interests because the lure of pork barrel fund releases and other goodies (like P500,000 gift bags) is simply irresistible to them. Now, with this new decision, it is becoming clear that a majority of the members of the Supreme Court also will not act against the interests of the President even when this effectively makes them a party to the concealment of corruption and other public crimes.
This should be, for all of us, profoundly distressing. If all three branches of government are now the captured preserve of the President and her gang, what can we, the suffering Filipino public, do about it? We are told that there are prescribed processes to seek redress and we are exhorted to use those processes. But we know — not being quite as stupid as they assume us to be — that these processes and the institutions through which they flow are controlled by those able to exercise the coercive and economic might of government. We have seen how the impeachment process can be blocked completely by mercenary congressmen. It now appears that we can no longer even count on the Supreme Court to stand up for our interests and for justice, fairness, and truth. Are we lost?
Are we lost, indeed? The question hangs in the balance, but another non-lawyer, Tony Abaya, points out in his column,
All this calls to mind one of the most perceptive comments made by Engineer Jun Lozada during the Senate hearings on the ZTE scandal, which no one seems to have paid much attention to, to wit, that “in the Philippines, with our abundance of lawyers, there is more emphasis on legality than on justice, and that we have a legal system but not a justice system” How true, how sadly true.
To this non-lawyer, if this landmark decision is left as is, it means that government bureaucrats, favored businessmen and predatory politicians can now conspire with the Malacanang tenants and their relatives to raid the public treasury with more impunity than ever, or to enter into contracts clearly disadvantageous to the national interests, fully confident that they would be safe from investigation by Congress or prosecution by the courts since they can always invoke executive privilege to cover up their crimes.
Then again, a way forward is the proposed freedom of information act being lobbied for by various groups. One such group, Team RP, issued this statement today:
ON THE SC DECISION ON EXECUTIVE PRIVILEGE
“The Court has always been regarded as the final bastion of democracy, a balancer of power and rights, and a champion of the public’s interest, but the recent Neri vs. Senate decision of the Supreme Court promulgated on March 25, 2008, left the public with more deepening suspicion, growing unrest and a sense of confusion with nowhere else to go.
“The decision which ruled that Secretary Romulo Neri cannot be compelled to answer several key questions about the anomalous NBN-ZTE broadband deal, in effect have left the entire nation doubting the Arroyo government in light of this corruption scandal.
“But while the decision left us uncertain, it highlighted some fundamental things which we urge the public to ponder — first, we would not have had this dilemma had our executive officials provided for effective transparency measures espousing a policy of full and authentic public disclosure as embodied in our Constitution; and second, had our legislators not been lost in the world of politicking and grandstanding, their efforts in aid of legislation would have resulted in laws supporting the people’s right to know.
“As a country that prides itself with democracy, it’s ironic that we have no real access to information. Until a policy of full public disclosure, transparency and meaningful accountability is effected, not only will large-scale corruption issues persist, but the people will remain uninformed, disempowered, marginalized and disenfranchised.
“We can only grow as a real democracy when people are adequately informed about the operations and policies of government. The right of the people to be informed should no longer be left to the sheer discretion of the Court, the inertia of the lawmakers and the caprices of our public officials.
“It is alarming that Malacañang announced that members of the cabinet would invoke the Supreme Court decision when invited to Senate hearings. It gives a blanket license with ambiguous parameters to officials to evade the reach of both the oversight and legislative powers of the Senate.
“We believe that the Palace, who has taken the role as the main crusader against graft and corruption should also take the lead not in finding ways to hide from the public’s eye but to be at the forefront of enacting these much needed transparency measures.”
Meanwhile, the debate on what to do, and what’s at stake, continues. In light of the Jesuit Province’s new guidelines on the continuing crisis, two reflections are offered up. A critical look comes from Filomeno Sta. Ana III of Action for Economic Reforms; and a friendlier look’s taken by Juan Mercado.