Wednesday, May 07, 2008 Senate seeks anew reversal of ruling on Neri case
SENATORS on Tuesday asked the Supreme Court (SC) anew to reconsider its March 25 decision affirming Malacañang's invocation of executive privilege through former socio-economic planning secretary Romulo Neri on the Senate's inquiry into the government's scuttled US$329 million broadband deal with the Chinese firm, ZTE Corp.
In a pleading, the Senate committees on accountability, trade and national defense asked the high court to render a new decision dismissing Neri's petition to stop the Senate from implementing his arrest due to a citation for contempt for his failure to appear during its scheduled hearings on the national broadband network (NBN)-ZTE deal.
Respondent committees said the court, in rendering its decision, failed to take into account specific provisions of the Constitution pertaining to securing foreign loans, "which weigh heavily against executive secrecy and in favor of disclosure, and which should therefore prevail over any general presumption of privilege."
They added that the power of President Gloria Macapagal-Arroyo to contract foreign loans in behalf of the Philippines is circumscribed by the requirement of prior concurrence of the Monetary Board, and is subject to reportorial requirements to Congress under Article VII, Section 20 of the Constitution.
"Considering that the conversation here in question between petitioner (Neri) and the President was made in their capacity as Neda (National Economic and Development Authority) top officials, and they were talking about a government project funded by a big foreign loan from China, it is submitted that the specific provisions of the 1987 Constitution should prevail over the general presumptive privilege of presidential communications under American jurisprudence," said respondents' lawyer Pacifico Agabin.
The committees filed their reply to the comment of Neri assailing their request for another oral argument and to require Neri's presence to disprove the SC decision that they gravely abused their authority in issuing the citation and arrest orders, or that the information withheld was "privileged."
"Contrary to this Honorable Court's decision, there is no factual or legal basis to hold that the communications elicited by the subject three questions are covered by executive privilege," the committees said.
The three assailed questions were: whether the President followed up the NBN-ZTE project with Neri; whether Neri was dictated to prioritize the NBN-ZTE project; and whether the President told him to go ahead and approve the project after being told about the alleged bribe.
The senators further claimed that Neri was misleading when he claimed that the information sought to be established by the three questions can only be obtained from Neda documents.
"After all, it is no secret to petitioner that executive privilege was likewise being claimed by Neda in refusing to submit to respondents copies of the documents pertaining to the approval of the NBN deal and that, consequently, respondents had to seek judicial relief to nullify such claim," they said.
On March 25, the high court voted 9-6 in ruling that the executive branch correctly applied executive privilege in refusing to answer the three questions asked by the Senate in connection with its inquiry into the award of the NBN project to ZTE.
The tribunal, dominated by appointees of Arroyo, granted the petition of Neri seeking to enjoin senators from compelling him to testify on confidential matters, saying doing so would be detrimental to the country's diplomatic relations with China.
The decision, penned by Associate Justice Teresita Leonardo-de Castro, gave weight on the argument of Neri's lawyer Antonio Bautista that Neri's conversations with the President "dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the country."
The decision is also anchored on technicalities ensuing from the failure of the Senate to publish its rules at the opening of the 14th Congress.
Executive privilege is a recognized right of the President to withhold from Congress, the courts and the public any information regarded as vital to the national interest. The information could include conversations and correspondence between the President and her officials pertaining to the military, diplomatic, and other national security issues.
Neri filed the suit with the SC after the Senate ordered his arrest following his failure to heed their subpoenas for him to appear during the inquiry. His petition sought the SC ruling that would set the parameters in the invocation of executive privilege in the light of the communications between him and the President on the controversial NBN deal.
His invocation of executive privilege on these questions has prompted the senators to cite him for contempt and to issue a warrant for his arrest.
The Senate investigating committees subsequently filed a motion for reconsideration, adding that the perpetuation of the Neri ruling will cause the lingering impression that the SC has lost its independence.
The Senate committees added that the Neri decision "seriously strikes a debilitating blow" to the mechanism of checks and balances among the three departments of government which is designed to ensure the continued survival of a living and growing republican state.
They said the Neri decision effectively provided the executive department with a simple, ready and expedient tool to resist legitimate legislative inquiry after the court legitimized the mere presentation by the executive department to the Senate of a letter invoking executive privilege.
If not corrected, the Neri decision could "effectively turn executive privilege into a refuge for scoundrels," the respondent committees warned. (ECV/Sunnex)
