MANILA, Philippines - The Senate rejected the offer made by Chief Justice Reynato Puno to allow Secretary Romulo Neri to appear in the Senate in exchange for the Senate not asking the questions to which Neri had objected.

What were these questions? There were three: (1) Did the President follow up on the NBN project? (2) Were you dictated to prioritize the ZTE? (3) Did the President say to go ahead with the project after being told about an alleged bribe?

If Neri?s answers to these questions is No, he would be saying that, although he has been hard to catch, he is not hiding anything. A negative answer might be a perjury, but unless there is evidence to the contrary, perjury might be hard to prove. It would be Neri?s word against, e.g., Lozada?s, especially since the paper trail seems nowhere to be found.

On the other hand, from the fact that Neri does not want to answer these questions one would logically conclude that the truthful answers could compromise his boss and that he does not want to do that. Hence, when the Court asked the senators whether they would be willing to forego the questions, how is one to read the Court?s offer?

There are two ways of answering that question, one charitable and the other malicious. The charitable answer is what I suggested in my analysis last Thursday, namely that the Court was simply looking for an orderly way of dealing with the claimed privilege in the context of separation of powers. Or, as Midas Marquez of the Supreme Court staff has put it, the Court simply wanted to gather all the different claims of privilege and tackle them all together.

The malicious explanation would be that the Court did not want a head-on collision with the Executive and wanted instead the help of the Senate to rescue the Court from a difficult decision.

You, dear reader, can choose the explanation you want to attribute to the Court. But the fact now is that the Senate has rejected the offer.

The Senate?s reason, as expressed by Senate President Manuel Villar, is that accepting the offer would weaken the Senate as an institution. Let us try to understand what Villar means by this.

We must remember that the case filed by Neri asks the Court to prevent the Senate from compelling him to appear and testify. In Villar?s view and that of other senators, to accept the Court?s offer would mean a waiver of its right to compel the attendance of a witness. But does the Senate have such a right?

Clearly in Villar?s view the Senate has the right based on jurisprudence which antedates even the 1935 Constitution. Villar and his colleagues, trained lawyers some of them, must be relying on the 1927 case of McGrain v. Daugherty which held that Congress has the power to authorize agents to arrest and bring before it a witness who refuses to comply with a congressional subpoena. In Villar?s view, acceptance of the Court?s offer would be a relinquishment of this power and pro tanto a diminution of congressional power with possible consequence to future Congresses. Villar and his colleagues do not wish to be responsible for the enfeeblement of the Senate.

The problem with McGrain v. Daugherty, however, is that the case involved a private person and not an executive official claiming executive privilege. For that matter this authority has not been claimed by the US Congress since McGrain. Instead Congress declares the recalcitrant witness in contempt and asks the attorney general to prosecute him for refusal to heed a subpoena.

We do have Article 150 of the Revised Penal Code which punishes refusal to heed a subpoena of Congress. Can you imagine the Department of Justice or the Ombudsman prosecuting Neri for refusal to heed the Senate?s call?

At any rate, the Senate has thrown the ball back to the Supreme Court. For its part the Court has said that it will decide the case in a matter of weeks.

I will not speculate on how the Court will decide the case. But from the way the Puno Court has been waging a campaign for the protection of rights through the writ of habeas corpus, the writ of amparo and the writ of habeas data, I should not see the Court as being willing to be an instrument for the enfeeblement of democratic institutions.

What then do I hope to see?

I hope to see witnesses coming forward when summoned as witnesses and answering questions asked and, where proper, claiming that the President has instructed them to claim executive privilege.

I hope to see such witnesses being required to elucidate on what privilege they are claiming and submitting such claim for judgment by the Court, if need be, in chambers.

I am confident that the Court will be able to examine the claims presented before it and sift what is truly privileged and what is an attempt to hide wrongdoing.

Among the roles of the judiciary is the exercise of the power of judicial review. The power is a two-edged sword. It can either legitimize or exorcise. Thus in the current controversy the Court will either legitimize the power of the Senate to compel a witness who refuses to heed a subpoena and in the process rebuff Neri and his superior?s resistance to the Senate; or it will legitimize Neri?s refusal to testify and in the process clip the power of the Senate to compel defiant witnesses.

The Senate had occasion in 1950 to detain an uncooperative witness in Arnault v. Nazareno. But in that case Arnault was already before the Senate.

The Neri case now is different. The Senate already had him the first time, but they let him go, and Neri now is saying ?Catch me, if you can.? Will the Court help the Senate?