Deal or no deal? (updated)

Update, 4:52 pm. (first reported by Inquirer.net) Arroyo revokes EO 464:

“Effectively immediately, I am revoking EO 464. Executive officials may no longer invoke EO 464 to excuse non-attendance from legislative inquiries,” President Arroyo said.

I have questions for the lawyers:

1. If the President’s formally revoked E.O. 464, what happens, does it mean what the S.C. allowed the President and her officials to invoke, can no longer be invoked? Or can you still invoke the provisions of an executive issuance that has been formally revoked? Specially since Memorandum Circular 108 is still in force?

2. The main arguments in the provisions that were still valid, up to the time of revocation, having been ratified by the court, does a new executive issuance have to be signed, to continue invoking them?

In other words, does revoking E.O. 464 while asserting the right to invoke executive privilege, at this point, and with the particular issues at hand, actually mean anything?

***

Playing for time paid off. The President, I understand, is due to go to Hong Kong at the end of the month, and it seems by the time she does so (to kowotow?), the forces of reform would have been held at bay. This statement says it all: Palace to presume regularity in ZTE deal until violations are proven. Contradicting, of course, what the President herself said, earlier. But then her cabinet already contradicted her: and she didn’t object.

In the face of mounting calls for her to relent in terms of E.O. 464 (see Assumption classmates ask Arroyo to dump EO 464, including the President’s half-sister, Cielo Macapagal-Salgado) The Palace held the line, while focusing its energies on the Supreme Court.

Iinitial reports had it that it would be a Close call on Neri case, the oral arguments at the Supreme Court didn’t go well for the administration:See and SC justice not satisfied with Neri’s state secret argument. and Supreme Court justices find loopholes in Neri defense. Yet in the end, Supreme Court offers compromise on Neri: Senate has 24 hours to agree:

This is not the first time that the Supreme Court has arrived at a compromise arrangement with the Senate. In the case of national security adviser Norberto Gonzales, the Senate lifted its arrest order provided Gonzales went on leave.

Pacifico Agabin, counsel for the Senate, said that the discussions between the senators and justices are “more freewheeling” if they’re done in chambers.

Some observers are uncomfortable about the senators and justices meeting in chambers to arrive at a compromise. But a lawyer familiar with the Supreme Court said that, in the US, courts encourage Congress and the Executive to compromise or negotiate whenever executive privilege is raised.

“In this case, there is even no compromise because the Supreme Court will still rule on the first three questions, together with other disputed questions still to be asked, all in one decision,” the lawyer said. “This gives the public a better idea of the nature of executive privilege and avoids multiple suits.”

The three questions are: 1) whether the President followed up the NBN-ZTE project with Neri; 2) whether Neri was dictated by the President to prioritize the NBN-ZTE project; and 3) whether he was told by the President to go ahead with the project after being told of the alleged bribe offer .

So as it stands, 12 senators agree to SC compromise on Neri testimony–Lacson. The result, if the numbers hold up, is that Neri to attend Senate NBN deal hearing: the questions of the Justices makes for interesting reading:

This initial agreement was reached Tuesday evening after about nine hours of oral arguments on Neri’s petition to stop the Senate from arresting him after he refused to heed summons to testify at the inquiry into the scrapped $329-million national broadband network (NBN) contract with China’s ZTE Corp., Supreme Court Spokesman Jose Midas Marquez said.

Neri’s lawyer, Antonio Bautista, said the chairman of the Commission on Higher Education would appear before the Senate on Friday.

Marquez said that while Neri could invoke executive privilege to refuse to answer questions from the senators, he could be cited in contempt. The Senate, however, could not arrest Neri because of his pending petition before the high tribunal, he added….

Any contentious invocation of executive privilege would be brought to the Supreme Court, Marquez said.

Senate Majority Floor leader Francis Pangilinan meanwhile said that his colleagues have to be consulted first and they would notify the high tribunal on what they agreed upon within 24 hours.

Sen. Alan Peter Cayetano, chair of the Senate blue ribbon committee, said that he did not want the powers of the Senate to conduct legislative inquiries diminished. “There is already this resistance on the part of the executive department officials to appear in the Senate’s hearings either by invoking legalities or other means,” he said.

He said that under normal circumstances, the Senate may reject an invocation of executive privilege and order the official’s detention until he responded to the questions.

The justices, several senators and Neri’s lawyers met behind closed doors after the hearing where justices earlier said Neri could not invoke the privilege to cover up a crime.

Earlier, the high court, through Chief Justice Reynato Puno and Associate Justice Antonio Carpio, proposed that the Senate drop three questions they planned to ask Neri on a conversation he had with Arroyo on the NBN contract so the CHED chairman would appear at the inquiry…

…Carpio also said that the executive privilege could not be invoked to cover up a crime.

“Can executive privilege be invoked to hide a crime?” Carpio asked Bautista.

“No,” Bautista acknowledged.

Bautista denied that Neri was covering up a crime, pointing out that Neri had disclosed the bribery attempt allegedly made by Abalos.

What his client did not want to reveal was his “freewheeling” and unstructured conversations with the President about whether to continue with the deal or to modify or scrap the project, and about Chinese lending practices, Bautista said.

“If Neri would be called to disclose these, we will be letting the President rule in a fishbowl,’ he said.

Carpio pointed out that it was Bautista himself who “said, ‘Dwell on the impact of bribery scandals.’ This is not even a question but a fact.”

“Bribery is a crime under the Revised Penal Code,” Carpio reminded the lawyer.

“The moment you refer to a crime, it cannot be privileged,” Carpio said.

But Bautista pointed out that Neri and Ms Arroyo only discussed the scandal, not the bribery.

He said the alleged bribery attempt might embroil Chinese officials, which was why forcing Neri to disclose his conversations with the President could affect foreign relations.

“What’s the problem there, even if it cuts through members of the judiciary?” asked Justice Conchita Carpio Morales.

Bautista replied that conversations might endanger diplomatic relations and shame the country.

“Supposing there is bribery involving officials of China, it will embarrass us,” he said.

Carpio pointed out that if indeed there was bribery involved, then the payoff money would be shouldered by Filipino taxpayers since the project would be funded by a loan.

He then asked how the government should balance its interests when it comes to disclosing information about the deal.

“Should we protect diplomatic relations over interests of Filipino taxpayers? In weighing interests, what should the court do, protect Filipino taxpayers or the Chinese officials?” he asked.

Justice Consuelo Ynares Santiago also asked which was more important — keeping the President’s communication confidential or uncovering anomalies.

Bautista said keeping the President’s communications confidential should take precedence because there were other sources of information to disclose the alleged anomalies, such as witnesses Rodolfo Lozada Jr. and Dante Madriaga.

Puno also asked whether the cancellation of the project had led to any diplomatic row.

When Bautista replied that there were reports of “ruffled feathers” in China, Puno said this was different from a diplomatic row.

Bautista said that if China would not lend the Philippine government money in the future, that would be a form of a “diplomatic reaction.”

The justices also asked Bautista how Neri’s attendance at the Senate inquiry would affect Arroyo’s performance of her duties.

Puno asked Bautista to “please tell the Court how the Office of the President will be hampered in the performance of its duties if Secretary Neri will attend the Senate hearing?”

The lawyer said there would be a “chilling effect” because the President might no longer talk in confidence to her subordinates if they are compelled to tell the Senate what she tells them.

But Puno said the claim of chilling effect was a conclusion, and the lawyers would have to explain the particular impact on Arroyo.

Puno and Carpio went through each of the three questions the Senate was interested in.

Puno said the first question whether the President followed up on the NBN project, if answered in the affirmative, would only show that she had an interest in the project, but not necessarily “undue” interest as Bautista argued.

Bautista said that if his client answered the question, it would affect the President negatively because of the prevailing “accusatory” atmosphere.

Carpio also wondered whether there was anything “morally or legally wrong” if Arroyo followed up the project with the NEDA.

On the question whether Neri was ordered to prioritize the NBN deal, Bautista said that if Neri answered this, the country could be subjected to criticism from other governments interested in the deal and from the public and lobbyists.

“But the project benefits the people … If she orders its priority, should heaven fall on the President?” Puno replied.

Carpio also said Neri could have answered that it was not the NEDA which prioritized contracts.

On the question whether the President told Neri to approve the NBN deal with China after being told of the alleged bribe, Carpio said Neri could have answered that he was not the approving party.

Bautista said that if the question was answered with a yes, it could show that the President had undue interest in the project, but Puno said undue interest was just the lawyer’s personal opinion.

Puno also asked Bautista how asking Neri whether Arroyo ordered him to prioritize ZTE would “affect the powers and privileges of the Office of the President.”

Bautista said it would leave the President open to condemnation.

Tingog.com is furious. What is the point of a hearing if the crucial questions are off the table? He isn’t alone in feeling that way.

But a prudent view, as one lawyer explained it to me, might be this: the Supreme Court avoided having to rule on a tough issue, right now, while enhancing judicial supremacy in such matters. How? By having virtual control over the Senate proceedings yet avoiding setting the bounds of executive privilege in broad points at an emotional point in our history. Now the Supreme Court can rule over specific questions. The lawyer calls it a “deft” move: deciding the issue in broad terms might unwittingly emasculate the presidency as an institution. Ruling on specific questions, however, limits the issues. It allows for an incisive ruling limited to a particular case. So, from the lawyer’s point of view, a sober and masterful play of checks and balances.

Other lawyers also counsel prudence. Marichu Lambino paints a grim reason for the high court’s “solomonic decision”:

[M]aybe…the Supreme Court is trying to tell the parties they should behave like statesmen and diplomatically resolve their differences without asking the Supreme Court to use its own coercive powers.

If the Supreme Court were to use its own coercive powers and deny Romy Neri’s petition, paving the way for Romy Neri’s arrest to attend the Senate hearing, and then it is disobeyed, and disobeyed effectively by the executive branch, there would be a final breakdown in the last “democratic institution” that people rely upon, the Supreme Court. The Macapagal-Arroyo government would have held the record for that: destroying all the institutions of checks and balances in government including the final institution that people resort to for redress of grievances.

Where do we turn to when that happens?

Malacañang if it defies the Supreme Court, would have destroyed the last vestige of civilized order in our society.

Maybe the Supreme Court is not deferring a final resolution, it is deferring a final destruction.

No one knows, and no one will say, what the real thinking of the Justices was; but it initially reminded me of Ferdinand Marcos’ diary entries concerning his dealings with the Supreme Court after the imposition of martial law (see his Sep. 24, 1972 and Jan. 27, Jan. 29, Apr 2, 1973 entries). But the prudence counseled by the lawyer I talked to and Lambino’s analysis of the high-stakes the Palace is playing for, suggests that we should let the process unfold, further. Additional insights are in The Daily PCIJ report on the high court hearing.

But it’s also enough for the Palace to crow in press releases, regardless of the way the government case was hammered in oral arguments: DOJ claims 1st round victory in SC talks on exec privilege. For a glimpse into goings-on at the Palace, see Jove Francisco’s account of the Veep’s meet-and-greet with the President:

Kabayan then went inside the Rizal Hall.

Only to go back to the reception area because he was told he needed to escort the president when she enters the hall. Which is, well, not unusual but okay, special (?) because we know (and based on past media coverage) that the president doesn’t mind making an entrance alone. Well, as they say, these are not ordinary days.

It wasn’t 10am yet, so the president wasn’t technically late for her entrance. But since Kabayan came in early, he had to wait for PGMA. He chit chatted with fellow officials but after some small talk, he went over to the reception table where the Malacanang guest book’s nestled. He sat on the area’s chair while waiting for Mrs. Arroyo.

So we can actually say, that this morning, the man who is considered by some quarters as the “president in waiting”, literally waited for President Arroyo.

And when the chief executive came out of the room and saw her vice president, they exchanged pleasantries like there were no issues between them (especially about the possibility that Kabayan may replace her if the political crisis worsens).

The two of them, together with Executive Secretary Eduardo Ermita, even displayed a mini version of the now staple (and much criticized on the blogosphere) UNITY WALK, before joining their guests inside the Rizal hall.

They were civil to each other during the signing of the Civil Aviation Authority Act… sharing a laugh or two.

But they were evidently quite cozy during the merienda break, with De Castro breaking the ice by quoting the president’s oft repeated line during times of political crisis. They were talking to a congresswoman from Bulacan about a housing issue, when De Castro used the phrase “rule of law and due process”… sabay tapik kay PGMA like asking her for permission to use the line. PGMA laughed. (natawa din ako… earlier kasi, during her speech, she read a variation of this phrase din kasi. Sabi nga nila, hindi naman cut and paste speech, reiteration lang. hehehe)

Scenes like these only make some quarters reiterate their demand for the vice president to make a stand… if he will remain supportive of the president or not.

A fellow reporter following Kabayan asked him about the latest call made by the Hyatt 10, “Aysus!” was his initial reaction and he paired that remark with a smile, but he also didn’t hide his irritation (evidently not on the reporters but on the former cab secs) while he continued walking. When he stopped, he faced the cameras and with somewhat angry hand gestures, he declared: “Nobody! Nobody, can dictate kung ano ang sasabihin ko!”

Minutes later, some of the TV teams who were not able to catch the above mentioned ambush interview tried to get the VP again. So he repeated the “nobody can dictate me” phrase. Thing is, some other TV team failed to get it on cam, so they chased him in another part of the hall. The in demand VP obliged and repeated the phrase again. A lot of us listened to him in all three ambush interviews and we noticed, “parang pare pareho ang intensity ang pagiging emphatic ni Kabayan sa pagbitaw ng quotable quote na iyun ah?”

Interestingly, the president that some quarters want to replace with Kabayan reiterated her desire to stay in power until 2010, earlier in the event.

New Philippine Revolution thinks that the administration will now embark on efforts to consolidate its ranks:

In the next few days, I believe that Gloria will, definitely do the following things:

1. She will announce the lifting of EO 464 to prevent the CBCP from further joining the growing protest movement. That will give her administration a few more days to survive.

2. She will announce the suspension of controversial government officials involved in the ZTE scandal. That would contradict what the Palace announced today and yesterday, but, nonetheless, that would give her enough breathing space to prevent herself from totally being besieged.

3. She will announce new appointments in the Comelec, foremost of which, members of civil society, or one belonging to the Muslim sector.

I think the environment is being prepared for these pronouncements. Palace operators have allowed the people to hinge the search for truth with Neri, which is a tactical way of solving this issue. By concentrating all attention at Neri’s probable testimony, the palace is effectively leading the public’s attention away from Lozada and concentrate on Neri. I bet my bottom dollar that Neri’s testimony will not amount to anything since it has been months since the controversy first began. I am sure that palace operators have already cleaned every filth there is about this deal.

This is a variation on what Uniffors predicts: Romulo Neri is The Real Trojan Horse. i am not convinced: not that I think it’s impossible that Neri will lie, but rather, I think it’s much more difficult to cover up the paper and money trails; the problem is, not enough work has been done to uncover documentary and other non-testimonial evidence. The testimony, thus far, has been formidable and quite damaging; but it will not all come together until the paperwork and money trail are exposed.

Village Idiot Savant suggests fruitful lines of questioning:

First, the good senators should not impinge on any discussion about Neri’s dealings with Gloria Macapagal-Arroyo. At the merest hint of that, Neri will take cover under Executive Privilege and shut up tighter than a clam. Certain senators, unfortunately, have a manic compulsion to indict Arroyo in the most blatant and most dramatic fashion possible. That is not the way. Implication must be implicit: Neri must be coaxed; it is up to the senators (and the public) to connect the dots.

Second, make use of Jun Lozada. I believe there is still a strong personal connection between these two men (and not the sort that Jamby Madrigal wishes to imply). Lozada knows how Neri’s mind works; Lozada knows what questions to ask. The senators must exercise some humility and allow Lozada to guide them on the subject and manner of inquiry.

Third, there is so much out in the open already that it’s foolish to shake down Neri for more. Instead, they should use Neri to corroborate available testimonies and evidence, in particular, those made by Lozada and Dante Madriaga (bearing in mind anything that will directly implicate Arroyo.) Strengthen existing links instead of creating new and weak ones.

Fourth, have Neri explain his web-of-corruption charts. These charts have already been made public, and while Neri may claim forgetfulness in public statements, I do believe he will comply under oath.

Senators must exercise patience, cunning, and courtesy in order to get what they want out of Neri. With the right questions, he will not disappoint. There is no need to attack Gloria Macapagal-Arroyo directly; take out the men around her, and the house of lies will crumble soon enough.

The views of Kris at Kalasag on “moral thresholds” bears reading. It is something all the bureaucrats implicated but so far, not exposed, in all these official wrongdoings, should bear in mind.

Meanwhile, crowd control remains the order of the day: Amando Doronila explains why. Local government leaders, as Mount Balatacan Monitor points out, are beginning to feel the heat. As is the AFP. The Inquirer editorial advises the AFP to Clean up the barracks. And my Arab News column for this week is Let the Veep Succeed in Philippines: may not sit will with some people, but it’s my personal view of what should happen.

And here’s a statement from Team RP, that serves as a timely warning of where the sentiments of young people are. reytrillana’s Weblog also discusses the importance of engaging young people in political action. My So Called Life shares her thoughts on what’s going on.

The Annotated Chronicles points out that a government that takes for granted the right to withhold information, is a government predisposed to corruption.

And for those who haven’t read it yet, G.R. No. 169777 Senate v. Ermita. In particular, Valid Provisions of EO 464.