MANILA, Philippines – (UPDATE 3) Senators have scored Executive Secretary Eduardo Ermita for his alleged “double talk” and alleged ignorance of facts and the law when he said that the Senate cannot compel Cabinet members to attend its inquiries since it has not published its rules.

Ermita also said that because the Senate had not published its rules, laws that the upper House had passed might be considered null and void.

Ermita’s statement came a week after the high tribunal ruled in favor of former socioeconomic planning secretary Romulo Neri who sought the high court’s opinion on his right to invoke executive privilege against the ongoing Senate investigation into the controversial national broadband network project.

The court also ruled that Neri could not be arrested for refusing to answer some of the senators’ questions on the $329 million telecommunications transaction, particularly on his conversation with President Gloria Macapagal-Arroyo on the agreement that had been forged with China’s ZTE Corp.

Neri was implicated after key witnesses in the Senate inquiry named him as a participant in the project.

“Secretary Ermita is not a lawyer so we can’t blame him if he miserably fails to see the dangerous legal implications of his remarks. If we follow his position…then we come to the ridiculous and absurd conclusion…that all laws in the 14th Congress are likewise void for lack of valid hearings,” Senate Majority Floor Leader Francis Pangilinan said in a text message to INQUIRER.net Monday.

Among the bills passed was the 2008 national budget that President Gloria Macapagal-Arroyo recently signed.

“If we allow Ermita's arguments to remain uncontested then any person whose rights may have been curtailed or adversely affected by any of the laws passed in the 14th Congress can now come to court and claim that because the rules had not been published at the time that the hearings to craft these laws were conducted then these hearings as well as the laws enacted are void,” he added.

Senate President Manuel Villar shared Pangilinan’s argument. Calling Ermita’s statement “self-serving,” he then asked: “What about their budget? This means it’s invalid?”

To Ermita, he asked if publication of the Senate Rules would mean the attendance of Cabinet members to any Senate hearing. “O baka sasabihin niya eh iba namang usapan yan [Or will he say it’s another issue altogether]?” he asked.

He said that after consulting with legal and constitutional experts, the Senate would file a motion for reconsideration with the Supreme Court.

On the publication of the Senate rules, Villar explained that unlike the House of Representatives, the Senate is a continuing body because at any given time, there are 12 senators who do not vacate their seats.

Villar said the issue of publishing the Senate rules is “peripheral” to the issue of executive privilege.

“Kung baga, naghanap na lang ng butas at pinapalaki ang dapat ay isang maliit na isyu lang, kasi publication lang [It’s as if they just looked for a loophole and made what was a small issue of publication become bigger than what it is],” he said.

Villar repeated his earlier statements that the decision would give all future presidents, not just the incumbent, the right to do anything without being accountable.

“It’s as if there’s a license to commit a crime for the executive department because of that Supreme Court ruling. Nobody can question them. Everything would be executive privilege. If someone stole money, killed someone, violate some law, executive privilege would be invoked,” he said in Filipino.

“Iba na ang sistema ng ating gobyerno kapag ganyan. Hindi na tayo demokrasya at wala na ang check and balance natin [Our system of government would be different then. We won’t be a democracy and there won’t be any check and balance anymore],” he said.

Villar also warned the Supreme Court about losing its credibility and the possibility it may mockingly be called the Arroyo court because of this decision.

“Kaya ang ayaw nating mangyari ay itong Supreme Court ay matawag na Arroyo court. Kasi dati ang Supreme Court ay tinatawag sa pangalang ng chief justice, minsan Teehankee Court, Panganiban Court. Ito naman ay ayaw kong masabi balang araw na Arroyo court [We don’t want this Supreme Court to be called the Arroyo Court. Before, the Supreme Court was named after the chief justice, as in the [Claudio] Teehankee Court, the [Artemio] Panganiban Court. I don’t want this court would be called the Arroyo Court in the future),” he said.

Pangilinan said the Supreme Court decision, as interpreted by Ermita, undermined the constitutional principle of co-equality among the three branches of government and effectively assumed that there were now only two branches, with Congress, particularly the Senate, out of the picture.

“Until this ruling is clarified and going by Secretary Ermita's assertion, we effectively have only two branches of government. The legislative branch has been marginalized and is no longer a co-equal,” he said.

Pangilinan thus appealed to the nine Supreme Court justices to reconsider their decision, especially given Ermita’s interpretation of it.

“With all due respect [to the justices], we urge them to reconsider their decision because the ramifications are so serious as to possibly create a breakdown in the effective exercise of our legislative functions,” he said.

Senate Minority Floor Leader Aquilino Pimentel Jr. went a step further and called for Ermita’s replacement with the new bar topnotcher for his “double talk” regarding the effect of the Supreme Court ruling on executive privilege last week.

“[It's] time to change Ermita for engaging in double talk. Earlier he said OK. [I]m can hardly fully blame him because as he says he's not a lawyer. Anyway I propose Ona for executive secretary,” he said in a text message, referring to Mercedita Ona, from the Ateneo de Manila University.

In a separate interview at the Kapihan sa (Coffee at the) Manila Hotel, Pimentel said, “He is only reacting without deep analysis. It does not carry much weight.”

Senator Francis Escudero also asked Ermita to check his facts because his committees on justice and human rights, and ways and means published their rules at the Official Gazette last year.

“We would like to remind Ermita not to make a wholesale statement like that without checking the facts,” he said in a phone interview with INQUIRER.net.

Pangilinan reiterated the Senate’s position that it was a continuing body and that it did not publish its rules repeatedly.

“The Senate is a continuing body. It need not republish its rules unless there have been amendments. We have not amended our rules since 1995,” he said.

Opposition Senator Panfilo Lacson also lambasted Ermita for his statement.

“Malacañang is now interpreting executive privilege as the privilege of the chief executive to steal [the] people's money, [and] then cover the truth behind the crime. Executive Secretary Ermita's tepid arrogance in saying that Cabinet members won't be allowed to attend Senate hearings is the sad consequence of the Court's expanded meaning of executive privilege,” he said in a text message.

At the same time, Lacson maintained that the Senate, as a continuing body, did not need to publish its rules every year. “This has been resolved by the Court in past oral arguments involving similar issues raised against the Senate,” he said.

Pangilinan also mocked the Palace for gloating in its victory before the Supreme Court.

“Malacañang must be extremely pleased that the Senate, arguably the only remaining institution willing to stand up to the excesses of the executive branch, has been rendered inutile by this decision,” he said.

Pangilinan called on his fellow senators to “vigorously” fight the ruling “within the confines of the Constitution.”

“We took an oath of office to uphold and defend the Constitution. It is our duty to fight this constitutional battle,” Pangilinan said.

Speaker Prospero Nograles said while the Palace was “legally correct,” it should also “calibrate their stand and just invoke the SC [Supreme Court] ruling and follow rules of procedure outlines in the decision to diplomatically prevent aggravation when emotions are high.”

On the part of the Senate, Nograles urged the upper chamber to immediately publish its own rules to “avoid technical problems.”

“That’s provided for under the Constitution and our own rules. We need to publish all House and Senate rules,” he said.

“Even the Senate itself elected new Senate president and provide new chairmanships to every senator plus they need to re-file bills, resolutions and measures not acted upon when the last Congress expired,” he said.

“It means that this is a new Congress and not a continuing body. The same rules apply in House where almost 80% of members are re-elected and come back to the House. It’s still a new House but mostly same faces,” Nograles pointed out.