Let’s start with Neri and executive privilege: A timeline courtesy of the PCIJ.
My column today is A color of constitutionality The Inquirer editorial today is In aid of transparency, My column was less enthusiastic than today’s editorial about the compromise offered by the Chief Justice: Fr. Joaquin Bernas, S.J. who, by all accounts, was coaching the legal team arguing the Senate case, wasn’t pleased, either, but tried to make the best of it in A case of delicate balancing -but all have been overtaken by events.
The problem is of course, something that came as a surprise yesterday evening: Senate rejects SC compromise on Neri.
(see also, Senate rejects compromise: Conditions set by SC seen as crippling legislature) I’ve been mulling over the reasons why the Senate decided to harden its position and rebuff the Supreme Court. I think the Senators decided they are operating from a position of strength, legally and politically speaking.
By all accounts, going into yesterday’s oral arguments, the Supreme Court was split, 7-7, on Neri’s petition. The effect of such a vote, if it had taken place, would have been to deny Neri his petition. However, revealing, in essence, a party-line vote would have discredited the Supreme Court, because it would have shown that even clearly significant cases are now reduced to which justice is loyal to the President, or not.
For that reason, it would have made sense for the Chief Justice to throw the ball back in the Senate’s court, hoping it would clarify the extent to which Neri intended to be obstructionist. The Palace, for its part, faced with a sure loss if the Supreme Court had voted, could also look forward to a reprieve, while Neri in the meantime could invoke executive privilege, get into trouble with the senators, and have the whole thing end up back in court.
By which time, a new Justice would have been appointed, thus further firming up the administration’s numbers in the high court.
The Senate, though, in rejecting the compromise offered by the Chief Justice, and which has therefore puts pressure back on the court. The Supreme Court can now proceed to drag its feet: SC needs time for final ruling on executive privilege.
Lawyer Teddy Te, for one, is happy over the Senate’s decision (see his blog, Vincula):
After nine hours of orals, the Supreme Court Chief Justice offers a compromise–perceived by Malacanang to be “solomonic”, which should already put you on guard–to the Senate: 1. Neri will testify at the Senate, 2. he will not be arrested anymore, 3. but the three questions he had invoked “executive privilege” against will not be asked anymore and will be considered asked, and 4. each and every time he invokes executive privilege, the issue will be tossed back to the Court.
My first reaction was that it was a “cop out” by the Court, after strong decisions on press freedom and showing strong resolve against EJK and ED with amparo and habeas data. Later on, after speaking with very reliable sources, it made sense–though I still didn’t agree with the compromise; my sources told me that the CJ and Justice Carpio felt outvoted by the Gloria people in the Court and feared a loss had they insisted on a decision–so to avoid a loss, the CJ offered the compromise. One step backward, two steps forward–was it Lenin who said this, or Tommy Manotoc? Yes, it made sense but it still left me with a bad taste in the mouth.
If the Senate approved the deal, Gloria wins, hands down and the Senate loses, big time. The power of the Senate to summon witnesses would be severely impaired and the dictator gets away with silence on the three questions that directly place the ZTE deal at her doorstep.
I am glad that the Senate FINALLY acquired a collective spine (did that include you, Joker?) and some collective sense of identity and history and said, “thanks, but no thanks.” I hope the SC addresses this issue and, despite the lifting of E0 464, rules that its invocation under those circumstances was not proper and that Neri SHOULD answer those 3 questions.
This explains, to my mind, why the Palace slams Senate’s ‘arrogance’ for rejecting SC proposal. The compromise could have hidden the party-line vote it had in the Supreme Court; and it bought that most precious of political commodities, time. But, since anything is possible, it could also happen that an irritated Supreme Court, piqued by the Senate’s rejection, could then simply decide in Neri’s favor.
In the meantime, returning to Fr. Bernas’ piece, some problems now arise:
If no compromise is reached, will the court require Neri to appear at the Senate? Neri has claimed that he has the right not to heed the Senate’s call.
Should the court require Neri to appear, it would mean that for the court, the current Senate inquiry is not one where President Gloria Macapagal-Arroyo may prevent a department secretary from appearing, as provided for in Article VI, Section 22 of the Constitution.
Rather, the court would be saying that the current Senate inquiry is one in aid of legislation under Article VI, Section 21.
In Senate v Ermita, the court said that only the President and justices of the Supreme Court are exempt from summonses to an investigation in aid of legislation. Neri is neither the President nor a justice of the Supreme Court.
Should Neri still refuse to appear, in effect he would be claiming a right analogous to the right of an accused against self-incrimination. An accused can completely refuse to take the witness stand.
But if Neri is required to appear, the court would be saying that his situation is more analogous to the right against self-incrimination of a witness who is not an accused.
A witness who is not an accused may raise the defense of right against self-incrimination only when an incriminating question is asked. He has no right to refuse to take the witness stand altogether.
By analogy, the court would be saying that Neri may raise the issue of executive privilege only when a question he deems to be against executive privilege is asked.
It should be remembered that executive privilege belongs to the President and to no one else. At most, it can be claimed by the executive secretary by express authority of the President.
Hence, Neri must be able to show that after prior consultation with the President, he was instructed to claim executive privilege.
Whereupon, following the teaching of Senate v Ermita and in accordance with the tenor of the questions posed by the justices on Tuesday, Neri will be asked what exactly he is seeking to hide behind executive privilege.
At this stage, and as already mentioned during the Tuesday hearing, it may become necessary for the court to examine in chambers the secret sought to be guarded by the executive for the purpose of determining whether indeed the matter can or should be legitimately kept from the eyes of the public.
After all, the Senate has to be properly informed if it is to legislate intelligently, and the public generally has a constitutional right to be informed of matters of public concern.
Moreover, as already admitted in the Tuesday hearing, criminal matters are not covered by executive privilege.
Meanwhile, the story behind this news item –Arroyo revokes EO 464 after meeting with religious leaders– I found out last night. No one was supposed to know the President was going to meet her allied bishops, particularly the ones from Mindanao, at the Discovery Suites. However, the media was tipped off and reporters camped out. This meant that attendees were observed coming and going. And that the President ended up making her announcement sooner than planned. Speaking of bishops, Patricio P. Diaz dissects recent statements by the Catholic hierarchy.
In the meantime, Senators also want Memorandum Circular 108 scrapped. Check out smoke’s comparison of E.O. 464 and M.C. 108.
When he does publish a book, it will a doozy. Read Lito Banayo’s growing feeling of Déjà vu. Meanwhile, the plot thickens: Arroyo not just witness at NBN-ZTE deal signing: and Another China contract missing.
And Gail Ilagan has some interesting observations concerning Lozada’s abduction.
Economic news: Poverty worsens between 2003 and 2006, according to the National Statistics Coordination Board. (see Poverty worsens despite growth and Poor Filipino families now number 4.7 million and More Filipinos below poverty line ) In his blog, [email protected] comments on the figures. In his column, Peter Wallace says that while government claimed 7.3 percent GDP growth last year, the real figure is about 4.8 percent growth. See also Inflation surges to 5.4% in February and NEDA expects to record growth slowdown in Q1.
How do foreign analysts go about determining risk in the Philippines? Read Forecast that Arroyo will survive has ‘large margin of error’ – analyst.
In the blogosphere, Phoenix Eyrie, Reloaded, is at the very least, ambivalent about opposition to the President. Spring Roll is confused by recent events. Mandaluyong High School says, let’s think positive. Splice and Dice thinks that the issues gives people a chance to seize the day. blackshama believes the old People Power is dead, long live whatever replaces it.
Observations from a Lowly Traveller is looking forward to migrating. Bayan ni Kabayan looks at the Neri chart.
the senate did the right thing in throwing the issue back to the surpeme court to settle the issue with finality. the senators opposed to compromised is right to think that neri will just claim e.o. when asked questions that will impicate malacanang. then what? go back to sc again to compel neri to answer same questions?
the sc should just compel neri to show up to a closed chamber hearing and hear neri’s testimony and from there decide if the testimony neri will give to the senate is a matter of national security or just to cover-up a crime.
i understand that there are a lot of legal jargons and jurisprudence involved here but common sense dictates it is prudent and proper and the right thing to do. what’s is there to loose in hearing neri’s testimony in closed chamber?
i doubt doing that and deciding with facts all heard will violate the seprations of powers between the three branches of government nor it will emasculate the executive department if the decision is arrived with all facts known.
the very bone of contention here is whether neri’s testimony will violate e.o.. then have sc justices here it for themselves and decide.
once again our senators are not calculating and rational enough in their fight against the administration. they play a game of brinkmanship…. a dangerous game where it is well suited for gamblers and not on important issues that affect the whole nation. its just unbeleivable how would they even challenge the concept of executive privilege which is an accepted element on the separation of powers. there is no one to blame but themselves for pushing things on the edge. now they have put themselves against the wall in a no win situation. i always thought that things should be done in a calm, deliberate, non partisan and rational way to prevent gridlock like what we are seeing here.
In these times of protest I think that talking about quack journalist Patricia Evangelista is timely.
Reading her columns, I see in her a glimpse of someone in the bourgeois trying to incite the proletariat.
But for what?
Social justice?
Maybe.
But why speak out inflammatorily against the prevailing social order and everything that the government represents?
She is sliding into the pit of anarchistic communism. She wants social change as she says in the column she writes on. But does she have any idea on what will happen if the government she always denounces falls? Maybe this is the right time to tag her as “ REBEL WITHOUT A CLUEâ€Â
Little that she knows, that when the flames of rebellion occurs and our government falls, she won’t be able to enjoy what she enjoys now…Starbucks Frapuccino, McDonalds Burger.
Maybe she’ll get a little thinner when she is already on a Soviet-type Gulag queing for soup , or even worse, dead ala Auschwitz-Birkenau.
Ms.Evangelista, I think is not conscious that when the governement she denounces in rallies and in paper falls, the ones who will replace it will not be the middle class or those involved in rallies.
They will be the hardline communists supported implicitly by Satur Ocampo and Prof. Randy David.
They will kill all intelligista when they descend on the mountains and subdue the cities since there’s no effective fighting force to prevent them.
Pol Pot’s Philippine Excursion.
Think again Patricia, think again before you denounce the “fascistsâ€Â, you might be dead in the hands of your “hero communistsâ€Â.
John, get a grip.
I hereby nominate ‘Anarchistic communism’ as oxymoron of the year.
The three mysterious questions Neri does not want asked: 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.
A “no” in all clears the president; what’s his problem?
Ahh, the answers are yes?
Alternate questions could be:
1. who is the highest official of the land who followed up the project with you?
2. who is the highest official of the land who dictated prioritization of the project?
3. you went ahead despite knowing the defects because somebody told you to go ahead, yes or no? if yes, who told you to go ahead? if no, who do you think you are?
“Mr. Neri, did the president follow up the NBN-ZTE deal with you?”
“On advice of counsel, your honor, I refuse to answer on the grounds that it might incriminate me.”
Tapos. 😉
sooo…. the rot is systemwide.
if this country, were a computer, shut down, cold-boot to maintenance mode, and the running of a potent antivirus program is in order. failing that, reformat and re-installation of the operating system. there could be some data loss, but at least the thing will be running again.
so where are we now?
and seeing as this country is obviously not a computer, what can be done?
of course, there are people on here and out there who see the system running just fine, despite the virus that consume so much of its resources…
PS : Patricia Evangelista is really a “REBEL WITHOUT A CLUE”
John,
What a laugh. You are probably the one who is clueless. Iho, yung proletariat doesn’t need to be incited. Matagal na nilang alam ang kawalanghiyaan ng administrasyon ni GMA. Since 2001 and 2005, public opinion surveys have stated that the majority, who are from the masses do not favor the burgis-installed GMA government. Ngayon pa kaya after ZTE?
You have it backwards. It is only now that the burgis class, is waking up. By golly, the whole burgis madla has been sleeping or have been feigning sleep since 2005.
Methinks you who I presume belongs to the same class as Ms. Evangelista are the one cowering in fear if a real revolution breaks out.
Ask yourself, who do you fear? the commies or the masses? most avowed commies are not from the proletariat, they are from the burgis class. Go figure.
“of course, there are people on here and out there who see the system running just fine, despite the virus that consume so much of its resources…) – tonio
You mean the resources are “corrupted”.
Jeg
Maybe you haven’t got a single glimpse of the works of Mikhail Bakunin or even Lenin.
Communism arising out of anarchy concept.
So, don’t call every phrase you don’t understand as Oxymoron.
Thanks.
PS : Read some more books please
Jeg,
By the way , please be more courteous in your comments on others.
In that way, you will be respected.
Thanks.
But my dear Madonna,people nowadays are confused on what they want. They want “All Resign” , that’s anarchy.
They want people to have “equality in social levels”, that’s Communism.
PEOPLE WANT FREEDOM WITHOUT RESPONSIBILITY
We’ve gone far into Demo-crazy
I would love to have a government like the Nazis had. Yeah, it’s a terror state but look at its greatness in terms of power and imagine, almost 100% have jobs back then in Germany.
Maybe that’s the answer.
Certainly, John. I hereby edit my statement to read:
John, please get a grip.
And…
‘Communism arising out of anarchy’ != ‘anarchistic communism’
Sir.
By the way, dissenters ought to be shot.That’s what we need as a people
Jeg,
I won’t stoop to your level.
I know that you are the idiotic type who can’t stand being corrected.
Thanks
Youre most welcome, Mein Fuhrer.
(I love it when some people call MLQ3’s blog an echo-chamber.)
John,
The “All Resign” call is just being mouthed by the leftists and communists. There is no factual indication that this call is gaining ground or having significant support from the public.
Equality is just as an important aspect of democracy as apparently in communist thought. The difference is how the state or government promotes or enforces equality. A liberal democratic state recognizes the rights and freedom of every individual while respecting equality for all. A communist state enforces equality by not recognizing rights, esp. property rights and freedoms.
Germany then? Good luck. MAybe you should organize a Nazi Party in the Philippines. It’s legal you know, like the communist party.
By the way Madonna will you not cower in fear if a bloody insurrection breaks out?
Think about that.
Madonna ,
Communism is illegal here in the Philippines.
Iha, magbasa ka ng batas.
@ john
not to worry. abante is being read, not inquirer.
Fascism is better than this rotten democracy we have.
Sorry my friends, but I am a professed National Socialist.
John,
Nakupo clueless! Naku dear. No political thought, including fascism or communism is illegal. The state cannot clamp down on your right to read Mao’s Little Red Book or Marx’s Das Capital.
Even in our Constitution, all political parties are legal, except those that have armed components. What is illegal is the NPA, iho, not the communist party, and its leftist arms such as AnakBayan, KMU.
Hay naku.
Maginoo,
Maybe you are the one reading Abante. Sorry, but I don’t read tabloids.
Madonna,
You are not asking me to think like a Nazi, of course its legal, but you are asking me to start a Nazi Party.
You think, the government will allow me to do that?
But medyo change topic tayo Madonna, naniniwala ka ba sa ipinaglalaban ng KMU or ng anak Bayan?
Don’t get irate ha, just a little political talk.
Wow, I am the only one who is “awaiting moderation”
Now, that’s persecution. I am not cussing anyone. I’m just saying I am a National Socialist.
What’s wrong with that?
Madonna, you are a classier person than I. When John recommended the Nazi State, I lost all interest in what he has to say.
But… like Madonna said, the state can’t clamp down on thought, and neither should we. We must instead decide whether or not a statement merits a reply.
Dear moderator :
What is wrong? Is this not a free forum?
By the way Madonna will you not cower in fear if a bloody insurrection breaks out?
Think about that.
— John
You see a bloody insurrection breaking out from the present situation, from whom, from what? I don’t. Oh yes, I will be very afraid if we are heading to a bloodbath. I hope that I will be afraid for the right reasons, not for the wrong ones.
mlq3,
re Peter Wallace
He never said that the real figure should be 4.8.
He does not dispute the 7.3 figure:
Wallace is troubled by the facts behind the figure. What he is saying that gloria should not assuming that she’s doing the right things.
Thats why his parting words were
notice he didn’t say “resign” (maybe he did elsewhere, i don’t know)
Madonna,
You know, sometimes people out there, even the ones attending the rallies, one cannot just determine kung kanino sila panig,you don’t know if they’re for the Fatherland or just for themselves.
To tell you one thing, I am disgusted the way ERAP , and CORY and others we all know stood up to condemn the government.
CORY fought against ERAP in 2001, now they are allies.
FILTHY POLITICIANS.
Do you feel the same?
mlq3,
should be
“What he is saying is that gloria should not be assuming that she’s doing the right things.”
Jeg
I am not even interested in what you want to say either.
Actually, your the one you first reacted.
Sorry my friend. “Accept thine defeat for thou hath fought with honour”
Actually Jeg, try being a National Socialist , you will learn to have pride in the Fatherland.
You will learn how to die for it.
Alam nyo kung may mga trabaho tayo wala tayo sa lintik na forum na ito.
At kung may trabaho tayo, di maghihirap ang bansa.
Lecheng gobyerno yan.
Rather than use any bloggers name in vain, I would just say that I am inclined to believe that the supreme court justices may tend to lean in favor of the president who appointed them; and I am also starting to think that supreme court decisions may change depending on who is the president.
If I am wrong, then….Very Good!
But my dear Madonna,people nowadays are confused on what they want. They want “All Resign†, that’s anarchy.-
demanding for resignation is anarchy? if having gma and her minions in the government resigned en mass is anarchy, then i’m all for that kind of anarchy. surely we can manage without gma and the rest of her evil empire.
anyway laws and constitution are being prostituted and bastardized by the arroyo administration all the time. graft and corruption goes unchecked. anarchy without the arroyos, bring it on!
yan kasi…di tinuruan ang mga sariling mag-isip independent of others!
By the way, dissenters ought to be shot.That’s what we need as a people — John
Claro, Mein Fuhrer.
What Wallace is saying is that in the equation GDP=C+I+GS+(X-I), all components are down. The increase in the GDP is accounted for by a fall in I or imports (so that (X-(-I) becomes X+I. The fall in I would be good if it is due to a new-found domestic capability to replace them such as being able to build capital equipments we used to import. This is not the case so far, so a decrease in I is accounted for by lowered demand for capital equipment, indicative of a flat growth not expansion of economic activity. That’s my reading.
Kuya,
kung sisisihin natin ang gobyerno sa pagiging jobless natin, ay kawawang Pilipinas!
John,
the default mode of Pinoys is to migrate to a first world country at the soonest time possible.
Pinoys are the first to reject JFK’s “Ask not what your country can do for you. Ask what you can do for your country”
Separate Opinion
The Armed Forces of the President
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 19:28:00 03/01/2008
PLS.READ.
bencard, among the many things we differ on, are how particular powers should be used.
take executive privilege. it is the means by which official secrets are protected. there are many questions involved, beginning with what is an official secret, and for how long must something secret remain so. many countries have official secrets acts but we don’t. so, we must gage it on a case to case basis and the particular weight of an individual case happens to involve the trust enjoyed by the one invoking it. but the operative word is “privilege,” that is, something meant to be an exception and not the rule.
all presidents can invoke executive privilege. but some will find it harder to invoke than others. it has nothing to do with the legality of the invocation, and more with the trust enjoyed by the one invoking it. a president enjoying wide trust, even if invoking the privilege for the wrong reasons, might actually not be questioned. a president suffering from low trust can invoke the privilege correctly, but suffer public condemnation for it. ideally, a well-functioning system would find a means to determine if the privilege is being invoked correctly or not, regardless of the public standing of the president making the claim.
In a low-trust environment, it might just be that the natural systems in place to guard against the promiscuous and malicious invocation of executive privilege actually work better.
anyway, the point is this. the president has that privilege, but again, as with the saying that what is legal is not necessarily what is right, the president may have by virtue of her office certain rights but there are times when it may be impolitic for her to avail of those rights. that’s the way politics is, because public officials are subject to the pressures, fair or not, of public opinion which is rendering a continuous judgment on incumbents. history can sort out if a president got a raw deal or not from his contemporaries (as, it seems, happened twice to marcos when he denied responsibility for the plaza miranda bombing and when he announced he’d uncovered a coup attempt by enrile and co.: both times may have actually been rare instances when he was telling the truth, but on neither occassion was he believed by the public).
at a time when the president’s constituency is shrinking, because of allegations of an abduction, and perceptions of official obstruction, it would be politically wise for the president to not invoke executive privilege, even though formally speaking it’s her right to do so as often as she pleases, and leave it up to the courts to sort out the justifiable from unjustifiable claims. but to do so would offer her short-term advantages but harm her office in the long run.
as for magdiwang’s pointing to “gridlock,” i always wonder why people bring this up, when “gridlock” in the sense of clashing branches of government leading to a temporary stoppage of the political machinery, is a natural and necessary defense mechanism, like blowing a fuse. there are times when government ought to grind to a halt if one part of it is in danger of running out of control and ruining the entire mechanism. the way governments grind to a halt as a kind of self-preservation mechanism differs, it can be the americans unable to pass a budget so the bureaucracy has to go home, it could be constitutional crises and confrontations as we’ve had, it could be a national strike in europe or the sudden collapse of a government over a vote of confidence in a parliamentary system. these are necessary, and far less harmful than letting one part of government run roughshod not only over other parts of government, but the public, too.
ricelander, i think what Wallace is saying is that the decrease in I is likely because of the increase in smuggled goods which eats into legitimate imports. So unlike legitimately imported oil, smuggled Oil is not accounted for in GDP (i.e. not deducted).
well said manolo. :))
mlq3 said,
Excellent explanation Manolo, the current built in check and balance in government is the very thing preventing Gloria from attaining absolute power, that is why she is trying other ways to circumvent this; one of these is through the abuse of Executive Privilege while the other is through attempts toward Charter Change.
cvj said:
This reminds me of a tussle between the Arroyo brothers and JDV pointing fingers each accusing the other of being involved in oil smuggling. There must be something deeper in this report.