Philippine Daily Inquirer First Posted 03:09:00 03/28/2008
MANILA, Philippines—Is it possible that the Supreme Court will reverse itself on the Neri case, once the Senate files a motion for reconsideration? Reversals are always difficult to achieve, but not impossible. The possibility that at least two justices in the nine-vote majority will change their mind and join the six who dissented may be slim, but nevertheless it is real; it exists.
On what basis will they change their appreciation of the legal issue before them? Allow us to hazard a guess. In his lengthy dissenting opinion, Chief Justice Reynato Puno summed up the doctrine of executive privilege as the "tension between disclosure and secrecy in a democracy." If we accept this phrasing of the problem, then our prayer is that enough justices in the majority may be moved, on reconsideration, to favor disclosure over secrecy.
That, it seems to us, is what this landmark case on the limits of executive privilege amounts to: A decision, by the justices of the high court, about which is more important, which is more in keeping with the public interest, at this particular juncture in our history.
There is no question that the Executive enjoys what is called the presidential communications privilege. In her dissent, Justice Conchita Carpio Morales disposed of the matter succinctly. "Underlying the presidential communications privilege is the public interest in enhancing the quality of presidential decision-making. As the Court held in the same case of Senate vs Ermita, 'A President and those who assist him must be free 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.'" (It bears noting that Carpio Morales wrote the 14-0 ruling in Senate vs Ermita.)
This privilege, however, is not absolute.
There is also no question that the Executive enjoys what is called the diplomatic, military or state secrets privilege. In his dissent, Puno noted that these content-based categories of executive privilege are subject to judicial determination, "without forcing a disclosure [he quotes from the jurisprudence] of the very thing the privilege is designed to protect." But again, this privilege is not absolute.
(It bears noting that Romulo Neri's inclusion of "impairment of economic relations" was dismissed by Justice Antonio Carpio, in his separate opinion, as "not even a recognized ground" for the claim of executive privilege, and that Neri's inclusion of "military matters" was derided by Carpio Morales as a mere afterthought, and therefore "need not be seriously entertained.")
There is, lastly, no question--or there shouldn't be--that the Supreme Court did right in proposing a compromise solution. As Justice Teresita Leonardo de Castro wrote for the majority: "The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a proposal that would lead to a possible compromise. The accusation is far from [the] truth. The Court did so, only, to test a tool that other jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the questions for review, and to avert a constitutional crisis between the executive and legislative branches of government." The proposed compromise made a virtue of necessity.
Unfortunately, the majority position that ended up deciding the case may have only rendered the very constitutional crisis the justices sought to avert inevitable. Why? In favoring the Executive's claim of secrecy, the Supreme Court pushed the Senate into an untenable position. Essentially, the ruling in Neri vs Senate Committee asks the Senate not to probe evidence of criminal activity that surfaces in a legislative inquiry if the Executive may be implicated. How can the Senate possibly acquiesce?
In the end, the majority decision in Neri vs Senate Committee strikes us as being based on a fundamental mistake: It takes the Executive at its word. This is the same Executive that tried to smother the principle of accountability under the heavy blanket of EO 464; with the help of five members of the majority in the Neri case, a unanimous court stopped that slay attempt in 2006. Since then, there have been many other attempts at evading accountability. Today, when the choice is between disclosure and secrecy, can we still afford to give this Executive the benefit of the doubt?
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