(Editor?s Note: This piece was written before it was known that the senators had rejected the compromise proposed by the Supreme Court.)

MANILA, Philippines -- Like many others, I have been trying to figure out what exactly came out of the Supreme Court hearing on Tuesday.

For now, at least two things are clear. First, it was admitted that crimes (e.g. bribery) are not covered by executive privilege.

Second, it was also clear that Romulo Neri?s lawyer, Antonio Bautista, could not specify what precisely was being claimed as covered by executive privilege.

Neri himself, who could have clarified the matter, was not present in the hearing.

As the court said in Senate v Ermita, not every claim of executive privilege is valid; every claim must be judged according to the context in which it is claimed.

Apparently hoping for an orderly structure in approaching the issue, the Supreme Court proposed as a compromise (I am not sure if it actually used the word ?compromise?) that Neri appear at the Senate on Friday but that the Senate consider the three questions that Neri had objected to as already asked and answered.

But how these questions would be deemed answered was not clear.

Unresolved questions

There are important unresolved questions as I write this piece.

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.

Only to the President

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.

No RP jurisprudence

Should Neri remain adamant in refusing to appear before the Senate, will the court uphold the right of the Senate to order his arrest?

To my knowledge, no existing Philippine jurisprudence directly answers that question.

There is American jurisprudence that recognizes the right of Congress, but generally the American practice is to seek the assistance of the executive and the judiciary. Should we follow American practice?

Should Neri actually appear before the Senate but refuse to answer questions that it might consider legitimate, can the Senate order his detention as it did in the 1950 case of Arnault v Nazareno?

This, I believe, will have to be answered by the court in accordance with the context of the current controversy.

System of checks, balances

It is evident to me that the tribunal sees the current case as requiring a delicate balancing of the prerogatives of the President, Congress and the Supreme Court in the context of separation of powers.

But the branches of government are not separated by impenetrable walls. Within the system of separation, there is also a system of checks and balances.

The court?s instrument of check and balance is its power to decide what the law is. Ultimately, the court will have to decide whether a specific claim of executive privilege must be honored under the rule of law.

The nation awaits the court?s judgment with bated breath.