An acid test for an SC justice

Ten years ago this week — on March 25, 2008, to be exact — the Supreme Court established jurisprudence when it ruled that conversation and correspondence between the president and public officials necessary in the president’s executive and policy decision-making process fall under executive privilege.

Executive privilege is the right of the president and other members of the executive branch of the government to keep certain communications private if disclosing those communications would disrupt the functions or decision-making processes of the executive branch.

If the decision were to be invoked by former president Benigno Aquino III and former health secretary Janette Garin when they face the Senate blue ribbon committee in connection with the Dengvaxia fiasco, and the issue is elevated to the Supreme Court, it would put Justice Teresita de Castro—and Justice Presbitero Velasco Jr.—in a bind.

The ruling was in response to then National Economic and Development Authority Director General Romulo Neri’s invoking executive privilege when asked what then President Gloria Arroyo and he discussed about the National Broadband Network (NBN) project.

In April 2007, the government signed the $329-million NBN contract with the Chinese firm Zhongxing Telecommunications Equipment. ZTE originally offered $130 million for the project, which was intended to improve government communications facilities.

The contract was signed in China with Arroyo witnessing the event. Arroyo’s then spokesperson, Ignacio Bunye, described her quick trip to China thus: “That’s the way things looked like for President Arroyo… She ‘came and went like a thief in the night.’” At the time she left for China, her husband was fighting for his life following heart surgery.

In September 2007, Neri was invited by the Senate blue ribbon committee to attend its hearing on the alleged anomalies in the NBN-ZTE deal. He told the Senate that then Commission on Elections Chair Benjamin Abalos, who appeared to be brokering the deal, offered him P200 million in exchange for endorsing the project. Neri said that he subsequently told Arroyo of Abalos’ bribe offer, and that she told him to reject it.

When asked 1) whether or not Arroyo followed up the NBN project, 2) whether or not she directed him to prioritize it, and
3) whether or not she directed him to
approve it, Neri refused to answer. When the Senate committee cited him for contempt, he petitioned the Supreme Court to rule on the issue.

Nine justices considered the communications that the three questions sought to elicit covered by executive privilege. The decision was written by De Castro and concurred in by Velasco and seven other justices.

In her dissenting opinion, Justice Consuelo Ynares-Santiago said the executive privilege doctrine applies only to information that if divulged would be against the public interest. She wrote that Neri failed to show how disclosure of his conversations with Arroyo would affect the Philippines’ military, diplomatic and economic affairs, as he had asserted to the senators. Then Justice Conchita Carpio Morales wrote that executive privilege cannot be invoked when “Congress has gathered evidence that a government transaction is attended by corruption.” Justice Antonio Carpio also argued that executive privilege cannot be used to hide a crime.

If De Castro and seven other justices rule that executive privilege can be invoked only by a sitting president and sitting officials of the executive branch, it would have implications on Arroyo. Sen. Antonio Trillanes, who, when he was a Navy lieutenant (senior grade), rebelled against President Arroyo because of alleged corruption in
her administration, might ask the Senate blue ribbon committee to reopen the
investigation of the allegedly anomalous NBN-ZTE deal. That would be a resolution Sen. Richard Gordon, the committee chair, would gladly endorse. Like Aquino, he had vowed to send Arroyo to jail if elected president when he ran in 2010.

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Oscar P. Lagman Jr. has been a keen observer of Philippine politics since the 1950s.