Supremes’ Folly

Let’s begin with a quote from the Vice-President, not usually considered an authority on anything, but who knows his public pulse. In the news article Inquiries barred by SC ruling?, which focuses on the Palace’s emerging effort to limit public criticism by bringing up the possibility of the Supreme Court citing people by contempt (a dangerous road, considering even lawyers are incensed: can you imagine hundreds or even thousands all being jailed for contempt of court?), the Veep was quoted as saying:

 

Vice President Noli de Castro urged those who disagree with the Supreme Court to respect and accept the ruling.

“Kapag hindi pa natin ginalang ang decision ng Supreme Court, sino ang igagalang ninyo after the Supreme Court?” he said in an ambush interview at the Philippine National Police Academy graduation rites in Silang, Cavite.

And really, this is the crux of the problem. Because, indeed, if the Supremes have disgraced themselves then the unthinkable has to be confronted, and that is, going back to the drawing board. But that point hasn’t been reached, at least, not just yet: at the very least it would have to wait until the Supremes have received a motion for reconsideration and then denied it with finality; or possibly, even further down the line when the 9-6 majority continues to hold even in cases, say, like another People’s Initiative scheme. Then the country would no longer be able to ignore the reality of a Puppet Court.

Unless of course, without waiting for a Puppet Court to hand down one decision after another, the justices in the minority, led by their chief, decide to simply resign if the court upholds Neri v. Senate. That would be unprecedented; but would it be wise? It would only give the President a free hand to appoint not just six, but seven Justices in one fell swoop. But then again it would have been an act of self-preservation for the resigned Justices.

Would we then be faced with a situation more similar to the Japanese Occupation than even, say, Martial Law? Though at the heart of the New Society were ideas first explored during the Japanese Occupation.

Even when the Supreme Court disgraced itself (while saving the jobs of its members) by adorning the New Society with “a color of constitutionality,” the critics of Marcos still went to the Supremes to argue their cases, even though they weren’t particularly confident of a fair hearing. It was just that court remained one of the few venues where people could exercise a semblance of free speech. There was still a residual respect for the high court, but I have to wonder if it was an institutional respect or respect for its membership; just as during the Japanese Occupation the Supreme Court tried to do as little work as possible, knowing it was viewed as just another illegitimate institution of a government viewed as illegitimate by the people.

But then the public didn’t scoff at Jose Yulo, who assumed the position of Chief Justice after the legitimate Chief Justice, Jose Abad Santos, was executed by the Japanese, the way the public scoffed Chief Justice Enrique Fernando during the Marcos years. But in the end when the entire Marcosian apparatus came crashing down the Supreme Court he’d appointed went with him. The Japanese Occupation and Martial Law still remain national traumas within living memory: and with continuing ill-effects as Alfonso Aluit once pointed out.

But then, what do you do, Puppet Court or no? For example, De Venecia son seeks SC help over wiretapping. And while Manuel Buencamino, in his column Play them loud, can properly distinguish between the Garci tapes and those Sen. Juan Ponce Enrile has in his pocket -and which has led JDV3 to run to the Supremes with a Habeas Data petition- the long and short of it is that the reason people have to run to the Supremes is they’re the court of last resort -but what happens when resorting to that court can only hasten not justice, but the closing of a government trap?

Which brings us back to the Vice-President. Who -or what- would be left to respect, once respect for the high court is gone? Which explains why disappointment in certain quarters -and I am specifically referring not to critics of the President, but those who believed that the President’s sins of omission or commission, as alleged by her critics, could be amply attended to by institutional means, whether Congress or the courts- is running so deep, and why the response, as invoked by Fr. Bernas (see link below) is basically this: storm the high court at Padre Faura with prayers, of the legal and spiritual kind.

And why great pains are being taken to dissect the high court’s ruling, to point out the Supremes’ folly, and to remind them that once respect for them is lost -what, indeed, will be left?

Let’s move on to a portion of the decision, before tackling what some lawyers told me yesterday. Here is the portion from the main decision as written by the ponente, Justice Teresita Leonardo de Castro:

 

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit:

 

1) The protected communication must relate to a “quintessential and non-delegable presidential power.”

2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

 

3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations.

 

Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

 

The third element deserves a lengthy discussion.

United States. v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.

 

The foregoing is consistent with the earlier case of Nixon vs. Sirica, where it was held that presidential communications privilege are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government “in the manner that preserves the essential functions of each Branch.” Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted.

 

Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon[48] that “demonstrated, specific need for evidence in pending criminal trial” outweighs the President’s “generalized interest in confidentiality.” However, the present case’s distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to “limit the scope of its decision.” It stressed that it is “not concerned here with the balance between the President’s generalized interest in confidentiality x x x and congressional demands for information.” Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

At yesterday’s Mass for Cory Aquino at the Ateneo Rockwell, I asked lawyer Carlos Medina (who was part of the Senate’s legal team and was part of One Voice’s legal team) his views and to the best of my understanding, he believed the portion above was the most objectionable part of the entire decision.

In the past, executive privilege applied to the President and individuals consulted by the President. When invoking executive privilege, the burden of proof was on the one invoking the privilege, and not on those making inquiries resulting in the invoking of privilege; the decision reverses things and now puts the burden of proof on those making inquiries, therefore turning what was once something that could only be rarely invoked and with difficulty, at that, into a shroud of secrecy almost impossible to pierce.

Before the decision, it would have been, “I invoke executive privilege, because what you want me to tell you, deserves to be superdupertopsecret because of reason A, B, C…” with reasons A, B, and C subject to strict limits on their appropriateness.

After the decision, it becomes “Tell me why I should answer you when everything is presumed to be covered by executive privilege so tell me your reasons A, B, and C and I’ll see if I think your reasons justify my giving you an answer.”

It turns the assumptions that executive privilege is exactly that, a privilege, and one that’s strictly circumscribed, on its head.

Besides that, the privilege once applied to two people: the President and whoever talked directly to the President, about confidential matters; the decision expands coverage to include those with “proximity” to the President -including when those enjoying that proximity consult each other, in turn, on matters involving the President.

Before the decision, it would have been, “I invoke executive privilege, because what the President and I talked about on the phone is superdupertopsecret.” After the decision, it becomes, “I invoke executive privilege because what Sec. A and myself, Sec. B, talked about had something to do with the President, although neither of us were talking to the President at the time, nonetheless, since it was about her, it’s superdupertopsecret.”

smoke, in her blog, noticed this, too:

 

All this conclusion does is bolster the fact that Neri can claim privilege. But that was never at issue. The issue is whether the claim is justified. Again, the justifiability of the claim seems to have been taken for granted.

The third conclusion is the linchpin, and it is based on the fact that

“The case of Senate v. Ermita only requires that an allegation be made “whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified. The enumeration is not even intended to be comprehensive.”

 

In other words, the claim actually need not be justified. In cases where the Senate thinks the claim is unjustified, it can take the case to the SC. But that remedy is, in fact, illusory since, when it receives the case, all the SC will look for is whether the allegation was properly made – it won’t even look into the reasonableness of the claim. For instance, Midas Marquez – the Court’s spokesman – is now emphasizing that the reason the Court ruled for Neri is actually because the Senate was unable to show any compelling need for the information. This line of reasoning implies that if a need was shown, the privilege would have been denied. BUT that implication is contradictory to what the Court itself said when it declared that a mere allegation of privilege, properly made, is all that is needed. How can any enumeration of “compelling need” be validated without measuring those claims against the justifications for keeping the privilege intact? How can you say that the justifications for disclosure are more ‘compelling’ than the justifications for secrecy when the secrecy need not even be justified?

 

That all looks kinda circular to me.

A perfect trap!

The decision also closes off executive agreements from public scrutiny, because they become essentially immune to legislative inquiry.

And the decision essentially defines the ability of Congress to inquire so narrowly as to make oversight over the executive impossible; and that includes finding probable cause for prosecuting executive officials (or even the President) in the courts. For the Supreme Court says that while indeed, a limit on executive privilege is that it can’t be invoked to cover up a crime, it says the the only place that invocation won’t work is before the courts -which ignores how things can even get to court, if nothing fishy can be uncovered in the first place.

The whole thing makes a news story like this, otherwise heartening, disheartening: House body OKs bill facilitating access to state information.

Yesterday and today’s Inquirer editorials focus on the Supreme Court and its decision in Neri v. Senate Committee. Yesterday’s editorial, Divided court, began by pointing out,

 

We join the many who find the majority decision to be gravely disappointing. In striking a balance between the competing interests of two coordinate branches of government, the high court in Neri v Senate Committee et al seems to have decided to enable an Executive department with an inglorious record of evading accountability. That record includes the remains of Executive Order 464, the “ashes” of which, Justice Conchita Carpio Morales wryly noted in her dissenting opinion, “have since fertilized the legal landscape on presidential secrecy.”

The editorial went on to focus, first, on the dissenting opinions and what they argued were not at stake:

 

In his exhaustive and magisterial dissent, Chief Justice Reynato Puno devoted several pages to prove that the three questions are pertinent to the legislative inquiry the three Senate committees are conducting and to actual bills pending in the Senate. “The three assailed questions seek information on how and why the NBN-ZTE contract–an international agreement embodying a foreign loan for the undertaking of the NBN Project–was consummated,” he reasoned. Declaring the three questions as covered by executive privilege, therefore, is to effectively undermine the work of legislation.

 

Justice Antonio Carpio, in his separate opinion, also makes short work of the three questions: These, “if answered by petitioner, will not disclose confidential Presidential communications. Neither will answering the questions disclose diplomatic secrets. Counsel for petitioner admitted this during the oral arguments …”

 

We find it of no small import that, in a landmark case (a case of first impression, as Puno noted) where alleged diplomatic reasons are used to justify the exercise of the so-called presidential communications privilege, Neri signally failed to support his argument that the fate of our diplomatic relations with China was in fact at stake.

The editorial was referring to Bautista the Hutt’s inability to explain any diplomatic wrinkles that might arise from pursing the line of questioning intended by the Senate. The editorial then proceeded to focus on the main decision and its flaws (referring to the passage from the decision I reproduced above, in the context of another lawyer’s views on the decision):

 

Strip the ponencia written by Justice Teresita Leonardo de Castro down to its basics, and we find that it can be used to justify wrongdoing.

 

The three Senate committees, the majority decision notes, “argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this.” But the decision then draws what seems to us to be an unnecessary but most consequential contrast between the Neri petition and the landmark US v Nixon case. “Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry.”

 

What do our honorable justices mean? That when information about an alleged crime is elicited in a legislative inquiry, the claim of executive privilege can be used to make the information irrelevant? This strikes us as absurd. What are our lawmakers to do, if evidence of criminal activity surfaces during an inquiry in aid of legislation? Look the other way? Unfairly as it may seem, the ruling in Neri v Senate Committee et al will be summed up by many of our most law-abiding citizens as suggesting exactly that.

 

The majority decision makes much of the assertion that the “petitioner is not an unwilling witness.” That seems to us to privilege Neri’s one day of testimony, as against the numerous other instances when he failed to honor the Senate’s invitation. Again, context tells us that this did not occur by happenstance; the Arroyo administration, by the admission of its own officials, has helped potential witnesses to avoid the Senate hearings on the NBN deal.

And yet today’s editorial, Not absolute, says hope springs eternal and while slim, there’s always a chance the Supreme Court, upon a motion for reconsideration, may indeed reconsider (as Fr. Joaquin Bernas, S.J. pointed out). On what basis? The editorial says,

 

Allow us to hazard a guess. In his lengthy dissenting opinion, Chief Justice Reynato Puno summed up the doctrine of executive privilege as the “tension between disclosure and secrecy in a democracy.” If we accept this phrasing of the problem, then our prayer is that enough justices in the majority may be moved, on reconsideration, to favor disclosure over secrecy.

 

That, it seems to us, is what this landmark case on the limits of executive privilege amounts to: A decision, by the justices of the high court, about which is more important, which is more in keeping with the public interest, at this particular juncture in our history.

 

There is no question that the Executive enjoys what is called the presidential communications privilege. In her dissent, Justice Conchita Carpio Morales disposed of the matter succinctly. “Underlying the presidential communications privilege is the public interest in enhancing the quality of presidential decision-making. As the Court held in the same case of Senate vs Ermita, ‘A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.'” (It bears noting that Carpio Morales wrote the 14-0 ruling in Senate vs Ermita.)

 

This privilege, however, is not absolute.

 

There is also no question that the Executive enjoys what is called the diplomatic, military or state secrets privilege. In his dissent, Puno noted that these content-based categories of executive privilege are subject to judicial determination, “without forcing a disclosure [he quotes from the jurisprudence] of the very thing the privilege is designed to protect.” But again, this privilege is not absolute.

 

(It bears noting that Romulo Neri’s inclusion of “impairment of economic relations” was dismissed by Justice Antonio Carpio, in his separate opinion, as “not even a recognized ground” for the claim of executive privilege, and that Neri’s inclusion of “military matters” was derided by Carpio Morales as a mere afterthought, and therefore “need not be seriously entertained.”)

The editorial then tackles the proposal made by the Chief Justice at the time of the oral arguments on the case, and says that while it tried to head off a constitutional crisis, the decision, unless reconsidered, makes one inevitable:

 

The proposed compromise made a virtue of necessity.

Unfortunately, the majority position that ended up deciding the case may have only rendered the very constitutional crisis the justices sought to avert inevitable. Why? In favoring the Executive’s claim of secrecy, the Supreme Court pushed the Senate into an untenable position. Essentially, the ruling in Neri vs Senate Committee asks the Senate not to probe evidence of criminal activity that surfaces in a legislative inquiry if the Executive may be implicated. How can the Senate possibly acquiesce?

 

In the end, the majority decision in Neri vs Senate Committee strikes us as being based on a fundamental mistake: It takes the Executive at its word… Today, when the choice is between disclosure and secrecy, can we still afford to give this Executive the benefit of the doubt?

See the Malaya editorial, Promoting concealment of wrongdoing, too.

Lawyer Jose C. Sison, in his Philippine Star column “External and internal justice” (useless linking to it, because the paper’s site doesn’t have permanent links), helpfully put in bold the important parts of his column and that’s what I’m reproducing below:

 

In other words Neri won because the justices perceived that his position is the lesser of two evils…

 

…But at least some facts have already been established by the SC in this case that brought us nearer the truth.

 

Thus the SC found that on April 21, 2007, the Department of Transportation and Communications (DOTC) entered into a contract with Zhing Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of US $329,481,290 (approximately P16 billion) to be financed by the People’s Republic of China; that on September 26, 2007, Neri testified for 11 hours and disclosed: that then COMELEC Chairman Benjamin Abalos offered him P200 million in exchange for his approval of the NBN project; that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe; that originally the project was under a Build Operate Transfer (BOT) or any similar scheme, but when the contract was signed it was already by means of a loan from China although he was not privy to the changes anymore; that he had further discussions with the President regarding the bribery scandal involving high Government officials but could not divulge them anymore on the ground that they are covered by executive privilege.

 

If these facts are woven into the publicly known and openly admitted events… then the conclusion is quite clear and indubitable that some “katiwalian” amounting to a crime or violation of the Anti-Graft Law has been committed by the named officials and other brokers still to be positively identified.

 

And this is the vulnerable aspect of the decision… It still recognizes executive privilege when the Congress has already acquired substantial evidence that the information requested concerns criminal wrongdoing by public officials and other influential persons…

 

…”Law” here refers to “man-made rules and methods by which society compels or restrains actions of its members; the general rule of external human action enforced by a sovereign political authority”. Conformity of our actions to this law serves the ends of what we call external justice only.

 

…a broader all embracing law that treats of what is right and wrong or distinguishes between good and evil. If our will and actions conform to this law we have what is known as internal justice.

 

…internal justice is the object of morality while external justice is the object of jurisprudence or the science of giving a wise interpretation to man made laws and making a just application of them in all cases as they arise. Obviously internal justice is more important in the search for truth because our duty here is dictated by conscience unlike external justice where the duty is dictated by imperfect human laws. A combination of both internal and external justice is of course the best…

Another lawyer, Florin T. Hilbay, 1999 Bar Topnotcher and a professor of law, in When law is politics says:

 

…the Supreme Court’s decision in Neri v Senate… I believe is deeply flawed for a host of reasons: by default, President Macapagal-Arroyo (or her alter ego) has minimal proprietary rights over information generated in the exercise of her public functions; the questions the Senate asked can barely be said to have an impact on the President as a private person and on national security or foreign affairs; and the need of the public to elicit concrete information on allegations of office-related crimes involving high public officials surely trumps any speculative defense.

 

The 1987 Constitution may be insanely verbose, but its effusiveness is narrowly focused on the need to have a vibrant speech environment and on preventing misuse of public office. By now we ought to realize that behind claims to privileged information, done in the name of the public, is usually a crook who wouldn’t show his (or her) dirty hands. Citizens have the right to raise their eyebrows at every invocation of “national interest” or “official privilege” because rights claimed in the name of the public have almost always been exercised at its expense.

 

The Neri v Senate decision is all the more unfortunate considering that it effectively suppresses information crucial to opinion-formation essential to citizen feedback, at a time when it is most needed. What the Court has done is to discount from the public sphere knowledge that may be used by citizens in deciding whether they should use the force of public opinion to force Romulo Neri and/or GMA to resign, or to impeach her, or to prosecute Benjamin Abalos and Jose Miguel Arroyo; or in concluding that Jun Lozada is a fraud and his statements are hogwash. The wisdom of the masses doesn’t come cheap; it is a social capital available only when the marketplace of ideas is free. Today the Court engages in reverse expropriation, taking what is otherwise public property and preventing citizens from treading a path that might lead to enlightened public opinion.

Among bloggers, [email protected] says lawyers should weigh in but laymen should, too; a lawyer, Red’s Herring, does weigh in, pointing out the Supremes have already neutered impeachment:

 

In an earlier entry, I have submitted that the Supreme Court in Francisco, Jr. v. House of Representatives has practically crippled the impeachment process by adopting the Bernasian reading of “initiate” under Article XI, Section 3 of the Constitution in lieu of the interpretation of the House of Representatives, and taking up what it supposed as its “activist” role, declared such interpretation of a coordinate branch, contained in the House Impeachment Rules, unconstitutional. Under the impeachment gun then was Hilario Davide, Jr. and so the robed gang huddled together and quite expectedly hailed their Chief – at the expense of the Constitution. Francisco, I concluded, is therefore the father of Lozano and Pulido.

 

Now, Senate v. Ermita can also say, “Here, have a cigar, we have sired a son … in Neri v. Senate Committee.”

 

Because the father had misspoken, the son lost its way, and unabashedly acknowledged being befuddled.

 

…Very clearly, executive privilege can only be invoked by way of exception. So when the executive officials fail to show that the privilege is “of such high degree as to outweigh the public interest,” as Senate v. Ermita ruling describes it, in the disclosure of the supposedly privileged information, congressional oversight, as a general rule, will trump an appeal to the supposed privilege. In that event, contumacious defiance and refusal to disclose the information sought or needed by Congress for legislative purposes renders the withholding official liable to its contempt process and the attendant punitive measures. Indeed, Congress, acting through its committees, need not rely upon the all-too-measured judicial pace to exercise the ultimate power of oversight and thereupon employ the necessary enforcement tools.

Non-lawyers Strawberry Fields Forever and Scarlet Sky and Ricelander’s Blog are aghast. The Marocharim Experiment calls for resistance. Dean Jorge Bocobo over at Philippine Commentary is very excited over the fact that Justice Corona (of the spouse who signed that manifesto in support of the President fame) is still taking his doctorate in law while already serving on the bench.

Speaking of Cory Aquino, a beautiful passage in Scriptorium:

 

With her persevering courage, born of prayer and piety, she helped lead us of the Marcos kleptocracy amid coups and crises and the infighting within her coalition; and considering that Aquino for a time (1986-1987) had revolutionary powers exceeding even those of Marcos himself and yet did not abuse them, her example of self-control and liceity makes her a steadfast pillar of Philippine reformism.

 

Admittedly, the Aquino administration had its share of serious problems, but her achievements are too strongly buttressed by the facts of history to collapse from administrative or other imperfections. Even if she erred in Edsa Dos–as I think she did not (for there is nothing illicit in removing a corrupt leader who abused the Constitution, and the evil of the next one can be blamed on herself alone)–it was through sincere desire for reform and no other. This is indeed well-known to the Autocracy, hence its illegal effort to block Aquino from joining the protest of the ill-fated marines in Fort Bonifacio; for nothing else would have stopped her.

 

Therefore the news of her illness comes as a terrible shock. Corazon Aquino is a woman of faith and valor, a Philippine ashet chayil in the line of Deborah, Matilda and Dorothy Day who even now leads the cause of reform; she has earned not only our gratitude but our enduring love; and so the nation owes her all the prayer and support we can muster.

My column yesterday was Testimonial of a matriarch.