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.
Bencard,
Oh I have a lot to say, and of course we know Executive Privilege does not work here.
Thanks for the link Manolo, if only I can get the budget for such cosmetics I’ll include it in my list.
Of course the whole WORLD knows of the “Hello Garci” scandal. Garci’s sudden disappearance, then his sudden reappearance with conflicting statements between Singapore and the Philippine government on Garci’s whereabouts. This of course would involve the DFA AND now the DFA is defending that the Spratlys deal is peachy okay.
kabayan, yes, we remember that. there was genuine anger among the citizenry the reason it did not push through. but whatabout these calls for gloria’s ouster? did it gain the same positive response from the majority? latest sws survey i think showed only 15% will support people power. so how sure are you that gloria will soon go? i believe her time is up to 2010… but i’ll continue counting for you.
How about the issuance of E.O. 1017 and putting policemen inside and just outside media premises? Forgot about that?
kabayan, oh, i didn’t see your comment re gudani, balutan, bedol, et al. where did you get your “facts”, anc, pdi, philstar? i was hoping you really have something about “gloria”‘s personal culpability for corruption.
no smart-alecky quips, please. i see this blog is inflated enough with those nonsensical one-liners that contribute nothing to the “debate”.
ramrod, no contest. you’re the man.
How about this long love affair with China? I could start with the simplest one of course… Cover-ups, protection and worse, giving Coast guard ESCORT to illegal Chinese fishermen back to their country, they were caught at the protected Philippine marine sanctuary of Tubbhataha.
For the life of me I did not understand why this special treatment of illegal fishermen years ago NOW we know.
Want to know more? I’ll give you more…
Loss and theft of ballot boxes in Congressional custody, and this was CAUGHT ON TAPE.
“I can call spirits from the vasty deep.”
“Why, so can I, or so can any man;
But will they come when you do call for them?”
Thanks for bringing this up Bencard so the people could know, the anti-corruption groups would be so indebted to you by now. Want more?
Charter change is not so bad if people will only open their minds to it and not get so rabid. There’s a right way of doing it and there’s a wrong way. But with the way things have been going for the country, it better be done soon.
Of course there’s the Gambling Lord and Lady the Pinedas roaming scot-free.
Charter Change huh, an attempt towards dictatorial rule, we weren’t born yesterday
“For the life of me I did not understand why this special treatment of illegal fishermen years ago NOW we know.”
and what’s the reason behind this special treatment kabayan if what you’re saying is true? love affair?
Oh I’m just warming up…
Military, police officers and government officials who enriched themselves in gambling operations especially those with opulent lifestyles are still out there enjoying the fruits of their crime.
Yes right now.
Destruction of the spirit of the law for the ends of the corrupt few especially perpetrated by the one in the top position of the Department of Injustice. Protecting the guilty and persecuting those who protest against corruption and abuses.
grd,
Pls. do your research. Regarding the China affair. Do not take love affair in the literal sense.
How about our safety rating for journalists? The Philippines became the 2nd most dangerous place for journalists in the world.
kabayan, substantiation is not the same as enumerating your charges, or repeating the charges made by others. those are easy to do – you don’t have to be a rocket scientist to do either one. if you have the goods, become a witness and testify under oath – rather than hiding behind your handle. otherwise, as again some wag say: PUT UP OR SHUT UP!
Destruction of parts of Arroceros Park courtesy of the then Mayor Atienza. Atienza later assigned to the DENR because of debt of gratitude by her highness herself.
To add, now what in the blazes is Atienza doing trying have a hand in “securing” (or is it abducting) Lozada in the first place!?! Paying her back?
kabayan,
Keep up the good fight. We in the business sector are behind you all the way. At least we have the goods to support you…
Bencard,
Oho your shouting, I heard that shouted once in the esteemed hall of Congress… shut up? Perhaps “Back Off” would have been more suitable. There is no E.O. 1017 here by the way. By these time a lot of lukewarm people are now seeing the questionable actions of this government.
Thanks ramrod,
The whole point of this small small part of the list is for people to remember; since sad to say many Filipinos have a poor sense of history. And now I encourage them to learn history, even recent history so we as a race know who we were, who we are right now and then plot where we will be going in the future.
I still have a job tomorrow so that’s all for now. There’s a WHOLE LOT more by the way, all “they” have to do is ask.
“Military, police officers and government officials who enriched themselves in gambling operations especially those with opulent lifestyles are still out there enjoying the fruits of their crime.”
this and all are because of gloria, right? tell you what, why don’t we call for the abolition of the pma? it’s were the corrupt officials in the military came from, right?
taking in the literal sence? you must be the one taking it literally. these things you’re saying are just good for this forum only. you cannot even substantiate that in the proper forum. but i think it made you feel better now.
kabayan, you’re barking up the wrong tree. if you have the goods, the best way is go to your congressman. the same with other people. demand from them that their loyalty is with the people instead of just ranting here. and if they wont listen, then let them pay in the next election.
“nope, the photo is courtesy of our tax pesos:
http://www.pcpo.ph/index.php”
Presidential close-in photographer’s office! We need to give a literary award to whoever thought of this. Among “leaders” she’s the one with the most number of hangers-on and peons. Kulang nalang tagapaypay.
Finally, the pain of seeing my tax money put to waste aside, we have a repository of execrable GMA images on which to practice our photoshop skills.
She talks to God, claims she is god’s messenger, and now she’s a narcissist too…
@Kabayan
“How about our safety rating for journalists? The Philippines became the 2nd most dangerous place for journalists in the world.”
Actually, if you exclude the active war zones, we are the TOP most dangerous place for journalists and peaceful dissenters.
grd,
The PMA are not the problem grd, some suck up generals are. And please don’t remind me to go my Tongressmen. I can give you a separate list about them but it is late. I’ll give a list of their actions tomorrow if you like. I can even post it in the blog for all to see … hey, you just gave me a great idea! Thanks
nash,
Come to think of it nash, true enough we were the number one worst place for journalists in what is considered as a largely peacetime nation. Thanks.
kabayan, not here in this forum. you educate your constituent who are ignorant of what’s happening in the country. that’s the best way for you to help this country. i and the others here know how to use our votes wisely.
“The PMA are not the problem grd, some suck up generals are.”
kabayan, and when did this happen? just under the term of gloria?
grd,
There are lurkers around here who may wish to learn, or are neutral. Probably a lot less neutral by now.
But hey, if someone here wants to know the reasons why Gloria is in this s**t right now, I’m willing to oblige.
Good night for now. Still have work to do.
Mabuhay ang Pilipinong Tunay na Nagmamahal sa Bayan!
kabayan, don’t forget the glorietta blast, and the batasan blast, and the mmda demolitions, and oh yes, Mariannet Amper!
the problem here is that by presenting anything and everything through anti-gloria colored glasses, you have so diluted your argument it’s now easier to see these things as political brawl between gloria and the opposition. and between them, it’s easy to stand idly and just watch
Ok I’ll oblige to answer just one last question, grd, only in the term of Marcos and Gloria have been the military been used in such an abusive way. Okay? Sige good night na.
why don’t we call for the abolition of the pma? it’s were the corrupt officials in the military came from, right? – grd
Cool ka lang. Abolish na rin UP, Ateneo, and other schools where our corrupt public officials came from?
You’re aware to the issues in our country, I pretty sure of that and you have your own way of coping with it also. Allow us to fight for our advocacies, in all forums…
Peace…
Makes sense, and you are not the first to have said this. The Philippine governance organizational structure has serious flaws. Many have complained about the partylist, others now question the wisdom of 6-year-presidential term/ no-reelection. But kabayan and others are so filled with fear of GMA’s politicking tactics that they view charter change as too radical (but 😆 look at a coup as normal happenstance and practical 😉 ——– quite funny.)
“There are lurkers around here who may wish to learn, or are neutral. Probably a lot less neutral by now.” kabayan.
and they might actually cross the other line… just like ramrod here. a self-confessed pro-gloria until he discovered mlq3’s blog. and that was only i think october of last year. the ceo is a changed man. 🙂
ok, kabayan. good night for now.
grd,
If we base our decisions mainly on what we read in the papers, tv, etc. its easy really. Its different when you are actually involved with people. There are several persons I know who might have been our best generals today (not just PMA graduates but from West Point and Annapolis) but chose to leave the service because of what they saw plaguing the system. No regrets though, for they are now in more comfortable circumstances in the private sector, but such a waste…Like you, they chose to use their votes also, still believing that reforms can be achieved even if they fight fair.
“Charter change is not so bad if people will only open their minds to it and not get so rabid. There’s a right way of doing it and there’s a wrong way. But with the way things have been going for the country, it better be done soon.”
There’s another one, the link, full circle. From being a defender of the person to advocacy of the objective of the person. Watch out for the next! Lucky Gloria for having such faithful though at times coy articulators. I was tempted to say ‘sa bibig nahuhuli ang isda’, but I won’t say it. Cheers.
bert, so what’s wrong with charter change as “objective”, even by “gloria”? it seems you guys are afraid of your own shadow. i think psychologists call that “paranoia”. didn’t she say she will obey the constitution and step down in 2010? if you ever think you can “oust” her by force now, as your crowd has been trying to do since she became president, don’t you think you would have a better chance of succeeding if she tried to perpetuate herself in power beyond 2010? even “dictators” can be toppled by genuine people power, as in the case of marcos, you know.
Mita, UPnS, Bencard,
Talks about charter change now under Gloria’s term have become an invitation for all kinds of conflict. Why doesn’t the Lower House prospered by Nograles try it for the last time? They always say they have the numbers. Then, why don’t they it now, while the cake is still hot?
sa mga ating mga kasama sa barangay manolo, cool lang kayo! lilipas din ito!
mlq3 – “let’s make an offer which cannot be refused.” – Don Vito Corleone, Godfather I
bert, so what’s wrong with charter change as “objectiveâ€Â, even by “gloriaâ€Â? it seems you guys are afraid of your own shadow. i think psychologists call that “paranoiaâ€Â. didn’t she say she will obey the constitution and step down in 2010?–
didn’t gma also promised not to run for president during the 2004 elections? didn’t she also promised to let the truth come during the “hello garci” scandal? and to allow congress find the truth? then turn around, had her lapdogs block impeachment from proceeding due to the strength in numbers alone, being impeachment a numbers game and no search for truth. didn’t gma time and time again tried to bend or break the constitution? only to be rebuked by the sc. prof randy david said,
“It is trueâ€â€politics is not exactly the best site to look for the truth. But then, neither is the justice system a privileged site for finding the truth. Indeed, a refrain we often hear from lawyers is that not all truths are admissible in court. It is clever for Malacañang to argue that the proper resolution of the ZTE-NBN controversy rests exclusively with the courts. Treating it as a purely legal matter is a way of suppressing the many other faces of truth.”
the playing field is not level and is tilted in favor of malacanang. and that myy explain the paranoia that gma is causing among the filipino people.
i request that anyone who would quote me should do it without deliberately omitting parts that make up the true context of what i said. i said if she broke her promise to step down in 2010, cha-cha or no cha-cha, any attempt to oust her would more than likely succeed because, then, a great majority, (including this commenter), if not the whole nation, supported by the military, would not tolerate it.
constantly blubbering about “the playing field is not level” will not awaken the nation for a REAL people power.
That’s a loser’s strategy Mr. Bencard. My friend calls it strawman argument. I call it quote mining.
the harder the conflict the glorious the triumph!– thomas payne
fight on!
gotcha, ca t. i know you have been victimized by that nefarious conduct a number of times. and they do it with a straight face (lol).
bert, so what’s wrong with charter change as “objectiveâ€Â, even by “gloriaâ€Â? it seems you guys are afraid of your own shadow. i think psychologists call that “paranoiaâ€Â. didn’t she say she will obey the constitution and step down in 2010? if you ever think you can “oust†her by force now, as your crowd has been trying to do since she became president, don’t you think you would have a better chance of succeeding if she tried to perpetuate herself in power beyond 2010? even “dictators†can be toppled by genuine people power, as in the case of marcos, you know.—
didn’t gma also promised not to run for president during the 2004 elections? didn’t she also promised to let the truth come during the “hello garci†scandal? and to allow congress find the truth? then turn around, had her lapdogs block impeachment from proceeding due to the strength in numbers alone, being impeachment a numbers game and no search for truth. didn’t gma time and time again tried to bend or break the constitution? only to be rebuked by the sc. prof randy david said,
“It is trueâ€â€politics is not exactly the best site to look for the truth. But then, neither is the justice system a privileged site for finding the truth. Indeed, a refrain we often hear from lawyers is that not all truths are admissible in court. It is clever for Malacañang to argue that the proper resolution of the ZTE-NBN controversy rests exclusively with the courts. Treating it as a purely legal matter is a way of suppressing the many other faces of truth.â€Â
the playing field is not level and is tilted in favor of malacanang. and that myy explain the paranoia that gma is causing among the filipino people.
———–
That’s a loser’s strategy Mr. Bencard. My friend calls it strawman argument. I call it quote mining.–
it still doesn’t nullify the fact that gma’s actions doesn’t matches her words. balik baliktarin mo man ang mundo sinungaling pa rin si gloria at mga kampon nya. technicalities is merely how criminals get away from a guilty verdict, but a non-guilty verdict still doesn’t prove their innocence, they are still criminals!
the harder the conflict the glorious the triumph!– thomas payne
fight on!
what it took for marcos and his cronies to achieve in more than 20 years gloria and her kampon did and maybe surpass it in just six years! now that’s what i call efficiency and a well oiled machinery!