Passion For Reason
A democracy of kept secrets
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 03:24:00 03/28/2008
MANILA, Philippines—Secretary Romulo Neri asked the Supreme Court to insulate him from three questions that the Senate asked: one, whether the President followed up the controversial NBN-ZTE project; two, whether he was ordered to prioritize the NBN-ZTE deal; and three, whether the President said to go ahead and approve the project after being told about the alleged bribe.
On Tuesday this week, the Court obliged and held that the questions were covered by the confidentiality of presidential communications and of executive privilege on foreign relations. The dissenting views of Chief Justice Reynato Puno and Justices Consuelo Ynares-Santiago, Antonio Carpio and Conchita Carpio Morales have been elsewhere discussed. They pointedly ask how these questions could have jeopardized our foreign relations or in any way impair the performance of presidential duties.
I focus rather on just one point of the Court's decision. The Court did not dispute the fundamental principle that executive privilege may not be used as a shield to cover up crimes, a principle derived from the famous Watergate investigations that led to the fall of US President Richard Nixon. A "demonstrated, specific need for evidence in pending criminal trial" outweighs the President's "generalized interest in confidentiality." Instead, the Court distinguished Neri v Senate from US v Nixon.
The Court said that in Nixon, there was a pending criminal proceeding where the information was sought, and that due process and the fair administration of criminal justice required that the information be disclosed. And now the coup de grace: "Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry.... Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, [Malacañang] claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets."
To start with, there are in fact criminal proceedings against President Macapagal-Arroyo pending before the Ombudsman and pertaining to the ZTE-NBN scandal, namely, the case filed by Sen. Jovito Salonga in behalf of Kilosbayan and Bantay Katarungan and that filed by UP Law Prof. Harry Herminio Roque. The fact that the questions are being asked by the Senate and not by the Ombudsman shows not the aggrandizement of senatorial power but the abdication of the Ombudsman's sworn duties. Indeed, in the case filed by Professor Roque, the Ombudsman has already refused to implead President Arroyo in its investigation despite the well-settled rule that, though the President may be legally removed only by impeachment, still she may be investigated by the Ombudsman. (This was even asked in the bar exams four or five years ago!)
We musn't blame the Senate for its overzealous inquiries because the bodies that were supposed to do exactly that have failed. Why, do you trust the Department of Justice to nail the ZTE-NBN masterminds? No, they are so busy suing Jun Lozada and his entire clan. Do you expect the Ombudsman to subpoena the most incriminating evidence against the First Couple?
What we have is a case of institutional abdication, and the Senate has stepped in merely in default of failed constitutional agencies. The Court chastised the Senate for improper questioning of witnesses, and indeed the Senate is not designed to conduct a preliminary investigation. That task is assigned to professionally trained prosecutors, aided by armies of investigators. We have all witnessed clumsy moments on ANC when Sherlock Holmes became Inspector Clousseau. A criminal investigation is not supposed to be conducted in full view of TV cameras; that happens only in CSI on cable TV. But thank God there is still one institution in this Republic with the guts to take on the ruling Mafia families.
In other words, the Supreme Court drew careful lines as if it were presiding over a functioning Constitution. The irony is that that Constitution is replete with provisions that could have given the Court enough ammunition to fire away. It speaks of the citizens' "right to information on matters of public concern," the "policy of full public disclosure of all [state] transactions involving public interest," and of the grand principle that "public office is a public trust" and that our officials "must at all times be accountable to the people."
Even more relevant, as cited by Chief Justice Reynato Puno, is the clause on foreign loans. Article XI, National Economy and Patrimony, Sec. 21 says: "...Information on foreign loans obtained or guaranteed by the Government shall be made available to the public." The Supreme Court, sad to say, had the ammunition but not the will to use it.
The most infamous decision in Philippine constitutional history is Javellana v Executive Secretary, by which the Court validated the bogus plebiscite that approved the Marcos Constitution. The decision, however, though widely reviled today, was impeccably reasoned. The justices said, sure, no proper plebiscite was ever held, the constitution was not ratified, but whether that charter is in fact already in force and effect is a political question over which we cannot pass judgment. It was fancy legal hocus pocus of the highest order.
Neri v Senate was well-reasoned as well, but it imposes asymmetrical burdens. It tells the Senate to follow the rules tightly while letting the Executive and the Ombudsman twist, turn, and dishonor the rules they were sworn to uphold.
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